UNIVERSITY COLLEGE LONDON
‘EU CIVIL PROCEDURE AND
ACCESS TO JUSTICE AFTER THE
LISBON TREATY’
PERSPECTIVES FOR A COHERENT APPROACH
Zampia G Vernadaki
03/04/13
Submitted to UCL for the degree of PhD (Laws)
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
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Declaration
I, Zampia G Vernadaki, confirm that the work presented in this thesis is my
own. Where information has been derived from other sources, I confirm that this has
been indicated in the thesis.
……………………………………
Zampia G Vernadaki
Zampia G Vernadaki, UCL Laws
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Acknowledgments
Writing and completing this thesis has been one of the most challenging and
fascinating experiences in my academic life. However, without the support, the
guidance, and the assistance of the following people, I would have not been able to pull
through this task. Therefore, I would like to express in written my gratitude for their
help and advice to:
the Greek State Scholarship Foundation (IKY) for kindly funding my
research during my PhD;
my supervisor, Dr Florian H Wagner-von Papp, for his assistance and
cooperation. His commitment to the legal scholarship was a source of inspiration
and stimulation for me;
my partner, Georgios Papagalos, for proofreading my thesis, but mostly
for his patience and support during the writing of this work;
my parents, Maria and Georgios Vernadakis, who have always believed
in me, lovingly supporting me all these years;
last, but not least, my sister, Danai Vernadaki, who has been cheering me
up in difficult times.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
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Abstract
In the decentralised EU judicial system, EU institutions should intervene in
national procedural regimes to guarantee effective dispute resolution and enforcement
of EU law based claims before Member States’ courts, using as a yardstick the
fundamental right of access to justice (Article 47 CFREU). Pursuant to Article 51
CFREU, EU institutions should promote the application of the right of access to justice,
limiting national institutional barriers to accessing courts under fair and efficient
proceedings, while respecting their competences. This could limit the distortion of
competition in the Internal Market, facilitate commercial activities in the EU, and
reduce abusive forum shopping. These positive effects should be weighed against the
respect of Member States’ legal traditions, the learning effects of procedural diversity,
and the incentives for lobbyism. CJEU first approximated Member States’ rules on time
limits, interim relief, evidential rules, and reparation. However, its factual approach, and
its incapacity to appraise 28 different national procedural systems prevent it from
establishing systematic and detailed EU civil procedure rules. Moreover, secondary
legislative EU measures, such as the IPRED, harmonise national procedures in specific
areas of substantive EU law. Their impact is felt more widely in domestic procedural
orders, introducing rules of limited effectiveness that fail to strike a definitive balance
between the claimants’ interests to enforce their EU rights, and the defendants’ interests
to constrain such enforcement. Even horizontal legislative EU measures that introduce
optional EU procedural mechanisms, such as the ESCP, have a limited, mainly
disrupting, impact on national procedural systems, applying solely to cross-border
disputes, thus leading to multiplicity of procedures in national legal orders. In light of
the current discussions for a horizontal EU collective redress mechanism promoting
effective access to justice, Article 81(2)(e) TFEU constitutes the better way forward.
This provision is amenable to an expansive interpretation, which permits the
approximation of national civil procedure laws in order to ensure effective access to
justice for both domestic and cross-border EU law disputes.
Zampia G Vernadaki, UCL Laws
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Table of Contents
Declaration .................................................................................................................... 2
Acknowledgments ........................................................................................................ 3
Abstract ......................................................................................................................... 4
Table of Contents ......................................................................................................... 5
List of Abbreviations .................................................................................................... 9
1 Introduction – A Framework for Analysis ............................................................13
1.1 EU civil procedure law between unification and coherence – The
Research Aim ...................................................................................................... 13
1.2 Research Area: Revisiting the Basics of Civil Procedure Law................. 16
1.2.1 Private law v. civil procedure law .................................................... 17
1.2.2 The fundamental goals and functions of civil justice ...................... 19
1.3 Research Focus: Dispute Resolution and Enforcement in the EU ........... 23
1.4 Research perspective: The EU right of access to justice ........................... 31
1.5 Methodological Approach and Main Research Questions ........................ 36
2 The Right of Access to Justice in the EU: In Search of a New Role ..................39
2.1 Introduction .................................................................................................. 39
2.2 The constitutionalisation of the right of access to justice and repercussions
for EU civil procedure law ................................................................................. 41
2.2.1 A proactive view ................................................................................ 42
2.3 The fundamental procedural guarantees of the right of access to justice:
the standard of protection ................................................................................... 50
2.3.1 Right to an effective remedy before a tribunal ................................ 53
2.3.2 Right to a Fair Trial ........................................................................... 57
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
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2.4 Summarising Main Remarks ....................................................................... 71
3 Civil procedure law in the EU: unravelling the policy considerations ...............73
3.1 Introduction .................................................................................................. 73
3.2 The Desirability of EU Intervention into National Civil Procedural
Regimes ............................................................................................................... 74
3.2.1 A level playing field in the Internal Market ..................................... 75
3.2.2 Economics of Legal Certainty ........................................................... 77
3.2.3 Forum Shopping ................................................................................. 80
3.2.4 Assessment ......................................................................................... 81
3.3 The Feasibility of EU Intervention into National Civil Procedural Law . 83
3.3.1 Legal Tradition ................................................................................... 84
3.3.2 Economics of Procedural Diversity .................................................. 86
3.3.3 Influence of Lobbyism....................................................................... 87
3.3.4 Countervailing Considerations .......................................................... 88
3.4 Synopsis ....................................................................................................... 95
4 Civil procedure law in the EU: the role of the CJEU case law ............................98
4.1 Introduction .................................................................................................. 98
4.2 Judge-made EU civil procedure rules and the principle of national
procedural autonomy .......................................................................................... 99
4.2.1 The principle of equivalence: a brief evaluation ............................ 100
4.2.2 Interpreting the principle of effectiveness ...................................... 103
4.3 Recasting CJEU case law on national procedural autonomy: lessons
learned for civil procedure harmonisation in the EU ...................................... 123
4.4 A Recap ...................................................................................................... 131
Zampia G Vernadaki, UCL Laws
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5 Sectoral v Horizontal EU Civil Procedure Law: A Constitutional Conundrum? ..
133
5.1 Introduction ................................................................................................ 133
5.2 Sectoral EU civil procedure rules: the example of IPRED ..................... 135
5.2.1 An instrument for harmonising core aspects of civil procedure? . 138
5.2.2 Limitations of the IPRED ................................................................ 145
5.3 Horizontal EU civil procedure rules: the example of the European Small
Claims Procedure .............................................................................................. 150
5.3.1 Key features of the Small Claims Procedure in the Context of the
Right of Access to Justice ......................................................................... 153
5.3.2 Restrictions of the ESCP ................................................................. 157
5.4 What is next? Towards a coherent approach to collective redress ......... 165
5.4.1 On horizontality ............................................................................... 166
5.4.2 Striking a balance? ........................................................................... 169
5.4.2.3 Financing the EU collective redress mechanism……………………… 176
5.5 Summary .................................................................................................... 181
6 The Horizontal Approach to EU Civil Procedure Law Reconceptualised:
Achieving Greater Coherence...................................................................................184
6.1 Introduction ................................................................................................ 184
6.2 Civil justice cooperation after the Lisbon Treaty: a new era? ................ 185
6.2.1 Key changes in the post-Lisbon era ................................................ 186
6.2.2 New rules, old problems? ................................................................ 191
6.3 The way forward ........................................................................................ 194
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
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6.3.1 Recasting the relationship between Articles 81 and 114 TFEU:
harmonisation through the backdoor? ...................................................... 196
6.3.2 Reconsidering the general premises of EU civil justice cooperation
199
6.4 What is needed? The principles of subsidiarity and proportionality ...... 208
6.4.1 The principle of subsidiarity ........................................................... 210
6.4.2 The principle of proportionality ...................................................... 212
6.5 A review of main findings......................................................................... 217
7 Concluding Remarks ............................................................................................219
7.1 Background and overall argument ............................................................ 219
7.2 Of fundamental rights and obligations ..................................................... 221
7.3 Desirability and Feasibility ....................................................................... 225
7.4 On institutional restrictions ....................................................................... 228
7.5 In search of constitutional legitimacy....................................................... 232
7.6 ‘A paradigm shift’...................................................................................... 236
7.7 Outlook to the future ................................................................................. 240
8 Bibliography .........................................................................................................242
Zampia G Vernadaki, UCL Laws
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List of Abbreviations
AFSJ Area of Freedom, Security, and Justice
AG
Am.J.Comp.L.
BIICL
B.U.L.Rev
B2C
CCP
Advocate General
American Journal of Comparative Law
British Institute of International and Comparative Law
Boston University Law Review
Business to Consumer
Code of Civil Procedure
CDE
CEPEJ
CEPS
Cahiers de Droit Européen
European Commission for the Efficiency of Justice
Centre for European Policy Studies
CFREU Charter of Fundamental Rights of the European Union
CJEU
C.J.Q.
C.L.S.R.
CMLR
Court of Justice of the European Union
Civil Justice Quarterly
Computer Law & Security Report
Common Market Law Reports
CML Rev.
Colum.J.Eur.L.
CPR
CUP
C.Y.E.L.S.
Denv.J.Int'l L.& Pol'y
DG
Duke J.Comp. & Int'l L.
E.B.L.R.
Common Market Law Review
Columbia Journal of European Law
Civil Procedure Rules
Cambridge University Press
Cambridge Yearbook of European Legal Studies
Denver Journal of International Law and Policy
Directorate General
Duke Journal of Comparative & International Law
European Business Law Review
E.R.P.L. European Review of Private Law
EC
ECC-Net
European Community
European Consumers Centre Network
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
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ECHR
ECLR
European Convention on Human Rights
European Competition Law Review
ECR European Court Reports
ECtHR
Ed/Eds
Edn
European Court of Human Rights
Editor/Editors
Edition
EEC
E.H.R.L.R.
E.I.P.R.
EJCL
Eur. J. L. Reform
European Economic Community
European Human Rights Law Review
European Intellectual Property Review
Electronic Journal of Comparative Law
European Journal of Law Reform
ELJ European Law Journal
ELR
EPL
ERCL
ESCP
European Law Review
European Public Law
European Review of Contract Law
European Small Claims Procedure
EU
EuConst
European Union
European Constitutional Law Review
EUI
Eur J Law Econ
EUR
Fordham Int'l L.J.
FRA
GCLR
Geo.Wash.L.Rev.
Harv.L.Rev.
Hastings Int'l &
Comp.L.Rev.
European University Institute
European Journal of Law and Economics
Erasmus University Rotterdam
Fordham International Law Journal
European Union Agency for Fundamental Rights
Global Competition Litigation Review
George Washington Law Review
Harvard Law Review
Hastings International and Comparative Law Review
ICLQ International and Comparative Law Quarterly
Zampia G Vernadaki, UCL Laws
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ICT
IJHSS
IJPL
IPRED
J.E.C.L. & Pract.
Information Communication Technology
International Journal of Humanities and Social Science
International Journal of Procedural Law
Intellectual Property Rights Enforcement Directive
Journal of European Competition Law & Practice
J.E.P.P.
J Intl Econ L
J.L.Econ. & Org.
J. Legal Stud.
Jour.P.I.L.
JPL
J.Pol.Econ.
J.S.I.J.
LUISS
Journal of European Public Policy
Journal of International Economic Law
Journal of Law, Economics & Organization
Journal of Legal Studies
Journal of Private International Law
Journal of Politics and Law
Journal of Political Economy
Judicial Studies Institute Journal
Luiss Guido Carli
MJ Maastricht Journal of European and Comparative Law
MLR
NIPR
Nw.J.Int'l L. & Bus.
Modern Law Review
Nederlands Internationaal Privaatrecht
Northwestern Journal of International Law & Business
N.Y.U.J.Int'l Law & Pol.
OJ
OJLS
New York University Journal of International Law &
Politics
Official Journal of the European Communities
Oxford Journal of Legal Studies
OUP
Oxf Rev Econ Policy
Para/paras
Pers Soc Psychol Bull
PIL
Oxford University Press
Oxford Review of Economic Policy
Paragraph/paragraphs
Personality and Social Psychology Bulletin
Private International Law
PL
RberG
REALaw
Public Law
Rechtsberatungsgesetz
Review of European Administrative Law
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
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Reg
Rev.Crit.DIP
RLR
RTD eur.
S.Cal.L.Rev.
Sc.St.L.
SMEs
Syd LR
Regulation
Revue Critique de Droit International Privé
Ritsumeikan Law Review
Revue Trimestrelle de Droit Européen
Southern California Law Review
Scandinavian Studies in Law
Small and Medium Sized Enterprises
Sydney Law Review
TCR Tijdschrift voor Civiele Rechtspleging [Civil Justice
Review]
TEU Treaty on the European Union
TFEU
UNDP
Unif. L. Rev.
Va.L.Rev
Vand.L.Rev.
Vol/Vols
Web JCLI
Treaty on the Functioning of the European Union
United Nations Development Programme
Uniform Law Review [Revue de Droit Uniforme]
Virginia Law Review
Vanderbilt Law Review
Volume/Volumes
Web Journal of Current Legal Issues
YEL
Yale L.J.
Yearbook of European Law
Yale Law Journal
Yrbk Priv Intl L
ZeuP
ZZPInt
Yearbook of Private International Law
Zeitschrift für Europäisches Privatrecht
Zeitschrift für Zivilprozess International
Zampia G Vernadaki, UCL Laws
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1 Introduction – A Framework for Analysis
1.1 EU civil procedure law between unification and coherence – The Research
Aim
The terminological distinctions between unification, harmonisation, and related
terms have often been discussed.1 Unification involves an all-encompassing
convergence of procedural rules, whereby national procedural rules on a particular
subject are replaced by uniform EU rules of civil procedure.2 In contrast, harmonisation
is a less rigid term, signaling the gradual convergence of different legal norms in a more
flexible manner. It does not result in the production of identical procedural rules, but,
rather, the elimination of major differences between different procedural systems.3 In
the remit of the EU, harmonisation is often called approximation4 or Europeanisation.
5
As will soon become apparent, in my analysis I mainly use the term ‘EU intervention’
instead of harmonisation. This broad term encompasses all generally used terms
presented above. Depending on the degree of EU intervention into national procedural
regimes, this intervention can constitute full unification, approximation, or limited
modification.
1 See inter alia: S Goldstein, ‘On comparing and unifying civil procedural systems’ in R Cotterrell (eds), Process and Substance (Butterworths 1995) 28-29; M Tulibacka, ‘Europeanisation of Civil Procedures:
In Search of a Coherent Approach’ (2009) 46 CML Rev. 1534; B Hess, ‘Procedural Harmonisation in a
European context’ in X E Kramer and C H van Rhee (eds), Civil Litigation in a Globalising World
(T.M.C. Asser Press 2012) 160; K D Kerameus, ‘Some Reflections on Procedural Harmonisation:
Reasons and Scope’ (2003) 8 Unif. L. Rev. 444-445; M A Lupoi, ‘The harmonisation of civil procedural
law within the EU’ in J O Frosini, M A Lupoi, and Mi Marchesiello (eds), A European Space of Justice
(A. Longo Editore 2006) 200-201. 2 See: Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and
commercial matters [1972] OJ L299/32. 3 G Davies, European Union Internal Market Law (2nd edn, Cavendish publishing 2003)145. 4 See for instance: Articles 114-118 TFEU, chapter 3 ‘Approximation of Laws’; M Storme, Approximation of Judiciary Law in the European Union (M Nijhoff 1994). 5 See inter alia: C Crifo ‘Europeanisation, harmonisation and unspoken premises: the case of service
rules in the Regulation on a European Small Claims Procedure (Reg. No. 861/2007)’ (2011) 30(3) C.J.Q.
283-303; Tulibacka, ‘Europeanisation of civil procedures: in search of a coherent approach’ (n 1) 1534; C
Hodges, ‘Europeanization of civil justice: trends and issues’ (2007) 26 C.J.Q. 96-123.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
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Discussions on EU intervention in national civil procedure law go back more
than two decades to the Storme Report, which presented the results of a study on the
approximation of Member States’ rules of civil procedure.6 This study found that the
partial harmonisation of both national and international civil procedural rules was
necessary and feasible.7 Considerations on, among other things, the desirability of legal
certainty via increased confidence in the existence of equal access to justice, as well as
on the requirement for a transparent and effective system of procedural law, which
international businesses could use, were said to be in favour of the approximation of
Member States’ procedural regimes.8
Currently, there is no uniform law of civil procedure in the EU. What does exist
instead is a regulatory puzzle consisting of three main types of pieces. Firstly, there is a
considerable thread of case law of the Court of Justice of the European Union (CJEU)
on the enforcement of EU law rights in Member States’ courts. Member States have a
preliminary competence to define the rules according to which they will enforce EU law
in their internal legal order. However, CJEU has found itself obliged to intervene where
national procedural rules could not secure the effective protection of EU law rights,9
scrutinising diverging national rules on time limits,10
interim relief,11
evidential rules,12
6 Storme, Approximation of Judiciary Law in the European Union (n 4). The Storme Report was the result
of research initiated by an informal working-group consisting of legal experts in the field of procedural
law from the then 12 Member States in 1987. In 1988, the working-group signed a contract with the European Commission and continued its research for the compilation of a European Judicial Code on a
formal basis. Although this report was never officially adopted, it was nonetheless mentioned in the
‘Green Paper on a European order for payment procedure and on measures to simplify and speed up small
claims litigation’ COM (2002) 746 final, 12: ‘[the Storme proposal] is a valuable point of reference and
source of inspiration’. 7 Storme, Approximation of Judiciary Law in the European Union (n 4) 61-62. 8 Ibid, 44-45. 9 This case law goes back to the 1970s and the seminal case 33-76 Rewe-Zentralfinanz eG and Rewe-
Zentral AG v Landwirtschaftskammer für das Saarland [1976] ECR 01989. It deals with various
procedural issues, albeit not strictly of civil procedure character. 10 For example, see case C-208/90 Theresa Emmott v Minister for Social Welfare and Attorney General [1991] ECR I-04269; case C-338/91 H. Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor
Detailhandel, Ambachten en Huisvrouwen [1993] ECR I-05475. 11 Case C-213/89 The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others
[1990] ECR I-2433; joined cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen AG v
Hauptzollamt Itzehoe and Zuckerfabrik Soest GmbH v Hauptzollamt Paderborn 1991] ECR I-00415.
Zampia G Vernadaki, UCL Laws
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active or passive standing in the courts,13
and reparation.14
Secondly, the EU legislature
has recently developed some sector-specific pieces of secondary EU law, thereby
introducing detailed rules on various matters of a procedural nature based on Article
114 TFEU.15
These rules apply to both domestic and cross-border disputes and touch on
fundamental procedural themes, such as legal standing, interlocutory injunctions,
discovery rules, and interim relief. They are envisaged as a sine qua non in the process
of approximation of the relevant EU substantive legislation, and consequently of the
Internal Market endeavour.16
Finally, there is a series of EU legislative measures in the
area of civil justice cooperation.17
These are limited to cross-border litigation and range
from private international law uniform measures18
to autonomous EU procedural
mechanisms that apply alongside national ones for domestic disputes.19
It is against this fragmented background, that I investigate in this thesis whether,
when, and how, if at all, Article 47 CFREU on the right of access to justice could be
used as a legal tool for a coherent approach to EU civil procedure law in order to
[Footnotes continued on next page] 12 See for example: case 199/82 Amministrazione delle Finanze dello Stato v SpA San Giorgio [1983]
ECR 03595; case 222/84 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary [1986]
ECR 01651. 13 Joined cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The
Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others [1996] ECR I-01029; case
158/80 Rewe-Handelsgesellschaft Nord mbH and Rewe-Markt Steffen v Hauptzollamt Kiel [1981] ECR
01805. 14 Joined cases C-6/90 and C-9/90 Andrea Francovich and Danila Bonifaci and others v Italian Republic
[1991] ECR I-05357; case C-224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239. 15 See inter alia: Directive 2004/48/EC on the enforcement of Intellectual Property Rights [2004] OJ L 195/16 (IPRED). Early, often limited, examples of this type of EU regulatory activity can be found in
insurance law, labour law, corporate law, e-commerce and communications law, as well as consumer law.
See also below, text to footnote (n 8) at page 135. 16 The Committee on Legal Affairs in the European Parliament has recently stressed the lack of sufficient
indication that the current enforcement framework in the EU is effective and harmonised to the extent
necessary for the proper functioning of the internal market with regard to intellectual property rights,
asking for further research on this issue: European Parliament, 'Draft Report on enhancing the
enforcement of intellectual property rights in the internal market' 2009/2178(INI), 4-5
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-
438.164+01+DOC+PDF+V0//EN&language=EN accessed 25 March 2013. 17 Article 81 TFEU. 18 See for instance: Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters [2001] OJ L 12/1 (Brussels I
Regulation). 19 See for example: Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11
July 2007 establishing a European Small Claims Procedure [2007] OJ L 199/1 (ESCP).
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
16
achieve increased constitutional and functional legitimacy of the individual measures. In
other words, I examine whether access to justice could be used as a guiding tool for the
identification of the appropriate legal competence for EU intervention in civil justice
systems, promoting claimants’ realistic opportunity to enforce EU rights and
obligations, and defendants’ possibility to constrain such enforcement.20
1.2 Research Area: Revisiting the Basics of Civil Procedure Law
There is a substantial pedigree of research on civil procedure law on a European
basis.21
Most of these contributions, however, focus on particular institutions of civil
procedure. In contrast, my interest lies in the significance of civil justice for the
functioning, effectiveness, and sustainability of the EU legal order, and the extent of the
EU competence in the harmonisation of national civil procedural regimes. These
fundamental issues presuppose a consideration of the role, objectives, and functions of
civil justice in society.22
Before even addressing this issue, there is a need for a
demarcation between civil procedure law and substantive private law.
20 On the need to intervene in national ‘procedural rules (broadly construed) in the interest of fairness not
merely to those citizens of the Union who wish to claim the protection of a Community “right” but also to
those citizens who wish to contest such a “right”’ see, C M G Himsworth, ‘Things Fall Apart: the
Harmonisation of Community Judicial Procedural Protection Revisited’ (1997) 22(4) ELR 295, 310. 21 See for example: M Cappelletti and B Garth (eds), Access to Justice and the Welfare State (EUI 1981); A A S Zuckerman, S Chiarloni, and P Gottwald (eds), Civil Justice in Crisis. Comparative Perspectives
of Civil Procedure (OUP 1999); J I H Jacob, The Fabric of English Civil Justice (The Hamlyn Trust,
Stevens & Sons 1987)
http://socialsciences.exeter.ac.uk/media/universityofexeter/schoolofhumanitiesandsocialsciences/law/pdfs
/The_Fabric_of_English_Civil_Justice.pdf accessed 16 March 2013; M Zander, The State of Justice (The
Hamlyn Trust, Sweet &Maxwell 2000); B Hess, Europäisches Zivilprozessrecht (CF Müller 2010); N
Andrews, The Three Paths of Justice: Court Proceedings, Arbitration, and Mediation in England (Vol
10: Ius Gentium Comparative Perspectives on Law and Justice, Springer 2012); C Hodges, The Reform of
Class and Representative Actions in European Legal Systems (Hart Publishing 2008); J Bentham, The
Works of Jeremy Bentham (Vol 2, published under the Superintendence of his Executor, John Bowring,
Edinburgh: William Tait, 1838-1843) http://oll.libertyfund.org/title/1921 on 2010-06-22 accessed 07 March 2013. 22 For a presentation of the various normative theories on the function of procedural systems see, inter
alia: E Storskrubb, Civil Procedure and EU Law: A Policy Area Uncovered (OUP 2008) 295-301; L
Ervo, ‘Party Autonomy and Access to Justice’ in L Ervo, M Gräns, and A Jokela (eds), Europeanisation
of Procedural Law and the New Challenges to Fair Trial (European Law Publishing 2009) 24-25.
Zampia G Vernadaki, UCL Laws
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1.2.1 Private law v. civil procedure law
The distinction between substantive and procedural law is not an easy and
straightforward task. Moreover, there is no absolute consensus in the EU as to the entire
range of rules that fall in one or the other category. A common problem in all areas of
international law, EU law included, is that legal terminology differs greatly from one
Member State to the other. Sometimes these differences can be fundamental, whilst
others are limited to minimal textual nuances. Broadly speaking, private law
encompasses the rules establishing the substantive content of legal relations. The rules
introducing the means and actual conditions for the legal protection of these legal
relations form the law of civil procedure. In other words, substantive private law creates
rights and obligations for the legal subjects, while civil procedure law provides rules for
the realisation and effectuation of these legal rights and duties during legal
proceedings.23
The CJEU envisages the distinction between substantive and procedural law as
one between ‘rights, which individuals derive from Community law’ on the one hand,
and ‘legal proceedings intended fully to safeguard the rights which individuals derive
from Community law’, ‘procedural rules for legal proceedings’, and rules to ‘designate
the competent courts’ on the other hand.24
Substantive private law encompasses Union
law based rights, including all those circumstances and restrictions under which rights
come into existence, are assigned or terminated, and also determine the right holder and
the person having the corresponding obligations. In contrast, civil procedure law
consists of what is often referred to as ‘remedial rules’, and establishes the conditions
according to which people can initiate and maintain an action before courts in order to
safeguard their rights25
(standard and burden of proof,26
evidential presumptions,27
23 C H Van Rhee, ‘Civil Procedure: A European Ius Commune?’ (2000) 4 ELR 591. 24 See inter alia: Andrea Francovich and Danila Bonifaci and others v Italian Republic (n 14), para 42.
For a detailed enumeration see, inter alia: M Brealey and M Hoskins, Remedies in EC law: Law and Practice in the English and EC Courts (2nd edn, Sweet & Maxwell 1998) 107-108. Kerameus calls rules
on judicial organisation as the ‘hardware’ of procedural law, as opposed to remedial and procedural rules
stricto sensu forming the ‘software’ of civil procedure law: Kerameus, ‘Some Reflections on Procedural
Harmonisation: Reasons and Scope’ (n 1) 449. 25 W van Gerven, ‘Of Rights, Remedies and Procedures’ (2000) 37 CML Rev. 524.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
18
heads of damage,28
causation,29
and rates of interest).30
In other words, legal remedies
contribute to the metastasis from the theoretical to the practical force of rights,
constituting a bridge between extra-judicial behaviour and its judicial assessment.31
It
also consists of the so-called procedural rules stricto sensu; namely, rules on legal
proceedings for the pursuance of a remedy before a court of law, as well as rules on the
jurisdiction and organisation of the judicial system (jurisdiction to hear a dispute,32
security for costs,33
limitation periods,34
time limits,35
ex officio raising of points of EU
law).36
In the same vein, Judge Wilmars distinguished between normative powers on
the one hand, relating to the creation of substantive law by the European institutions,
and power of sanction, in a broad sense. The latter refers to means of legal coercion,
which ensure the respect of the law in cases of conflict regarding its application. These
are national rules on the resolution of conflicts, the procedures to be followed, the
limitation periods on raising claims and taking action, the admissibility of appeals, the
standards and burden of proof, and the possible defenses.37
To put it differently, civil
[Footnotes continued on next page] 26 Case C-242/95 GT-Link A/S v De Danske Statsbaner (DSB) [1997] ECR I-04449. 27 Amministrazione delle Finanze dello Stato v SpA San Giorgio (n 12). 28 The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others (n 11) para 88. 29 Andrea Francovich and Danila Bonifaci and others v Italian Republic (n 14) para 43; The Queen v
Secretary of State for Transport, ex parte: Factortame Ltd and others (n 11) para 65. 30 Case 130/79 Express Dairy Foods Limited v Intervention Board for Agricultural Produce [1980] ECR
01887; case C-271/91 M. Helen Marshall v Southampton and South-West Hampshire Area Health Authority [1993] ECR I-04367. 31 K D Kerameus, Civil Procedural Law – General Part (Αστικό Δικονομικό Δίκαιο – Γενικό Μέρος
Sakkoula 1986) 439-440. 32 Case C-446/93 SEIM - Sociedade de Exportação e Importação de Materiais Ldª v Subdirector-Geral
das Alfândegas [1996] ECR I-00073, para 32; case C-394/93 Gabriel Alonso-Pérez v Bundesanstalt für
Arbeit [1995] ECR I-04101, para 28. 33 Case C-20/92 Anthony Hubbard (Testamentvollstrecker) v Peter Hamburger [1993] ECR I-03777. 34 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland (n 9); case
45-76 Comet BV v Produktschap voor Siergewassen [1976] ECR 02043. 35 Case C-312/93 Peterbroeck, Van Campenhout & Cie SCS v Belgian State [1995] ECR I-04599. 36 Joined cases C-430/93 and C-431/93 Jeroen van Schijndel and Johannes Nicolaas Cornelis van Veen v Stichting Pensioenfonds voor Fysiotherapeuten [1995] ECR I-04705. 37 J M de Wilmars, ‘L’Efficacité des Differentes Techniques Nationales de Protection Juridique cntre les
Violations du Droit Communautaire par les Autorités Nationales et les Particuliers’ (1981) 1 CDE 390-
391. Engström refers to ‘enforcement rules’, as an umbrella-term for a broad understanding of procedural
rules: J Engström, The Europeanisation of Remedies and Procedures through Judge-made Law: Can a
Zampia G Vernadaki, UCL Laws
19
procedure law consists of all the formal (procedural stricto sensu) or substantial rules,
which regulate the various national disputes in every Member State and sanction the
observance of (substantive civil) law.38
However, the distinction between substance and
procedure is not always easy to make39
and there is considerable interdependence
between the two. By way of illustration, many substantive rules provide for the time of
bringing a legal action as the starting point for the realisation of some consequences; the
running of the statute of limitations is interrupted and the litigation is deemed to be
pending (lis pendens) in all respects.40
Finally, rules on computation of time and the
delivery of documents, although traditionally regarded as procedural, may still gain
importance in the context of substantive law, for example, when calculating time
periods provided for in a contract.41
1.2.2 The fundamental goals and functions of civil justice
There are two main goals civil justice may be envisaged to promote; on the one
hand, there is the conflict resolution objective along with its functional variations,42
and
on the other hand the law enforcement purpose.43
With the perspective on the necessity
to resolve a dispute, civil procedure rules provide parties with a wide range of choices.
This involves parties’ wide discretion as to the initiation or not of proceedings, to the
legal and factual characterisation of issues, and lastly to consider and enter into
[Footnotes continued on next page]
Trojan Horse achieve Effectiveness? Experiences of the Swedish Judiciary (PhD Thesis, European
University Institute 2009) 4-11. 38 D U Galetta, Procedural Autonomy of EU Member States: Paradise Lost? A study on the
Functionalised Procedural Competence of EU Member States (Springer 2010) 1-2. 39 C Harlow, ‘A common European Law of Remedies?’ in C Kilpatrick, T Novitz, and P Skidmore (eds),
The Future of Remedies in Europe (Hart Publishing 2000) 72; P H Lindblom, ‘On the Distinction
between Procedural and Substantive Law’ (1974) 18 Sc.St.L. 114. 40 K D Kerameus, ‘Procedural Implications of Civil Law Unification’ in A Hartkamp et al (eds), Towards
a European Civil Code (Kluwer Law International 2004) 146ff; M Dougan, National Remedies before the
Court of Justice. Issues of Harmonisation and Differentiation (Hart Publishing 2004) 95: Dougan offers
an indicative example of the close relation between substantive EU law and national remedies and
procedures that can affect the effective enforcement of EU law in Member States’ domestic legal orders. 41 Kerameus, ‘Procedural Implications of Civil Law Unification’ (n 40) 151-152. 42 Storskrubb (n 22) 296; Ervo (n 22) 24; Goldstein (n 1) 13. 43 S Prechal, ‘Community law in national courts: the lessons from Van Schijndel’ (1998) 35 CML Rev.
706; S Prechal, ‘Judge-made Harmonisation of National Procedural Rules: A Bridging Perspective’ in J
Wouters and J Stuyck (eds), Principles of Proper Conduct for Supranational, State and Private Actors in
the European Union: Towards a Ius Commune (Intersentia 2001) 52; Goldstein (n 1) 11-14.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
20
alternative dispute settlement. This perspective brings the function of civil procedure
closer to private justice, as courts and judges are viewed as mere mediators.44
At the other end of the spectrum, there is the law enforcement function, which
can be further divided into a subjective and an objective recourse. Judicial relief, or
subjective recourse, aims primarily to protect individual private interests, offering the
premises to resort to legal proceedings. The correctness of the decision is a fundamental
concern, which will subsequently affect the introduction (or not) of civil procedure rules
permitting and facilitating the correct application of the law to the facts of the case as
analysed above. This model emanates from the rule of law and its requirement for
effective protection of individuals’ private rights.45
From the perspective of the courts
and legal professionals, the focal point here is whether an infringed rule aims at only
guaranteeing the interests of the directly concerned private individuals.46
In contrast, the objective recourse serves diverse public interests of general
legality and is often envisioned as a ‘publicisation’47
of private litigation, aimed at the
maintenance and enforcement of legal standards and obligations, regardless of litigants’
individual arguments.48
In this context, civil procedure constitutes a behaviour
modification means, focused on the defendant and the prevention of the violation of
law. In addition, civil procedure can constitute a means for the interpretation and
44 On the distinction between state and private justice see, Ervo (n 22) 25. The author suggests that state
justice has moved very close to private alternative dispute resolution in Finland with the conspicuous consequence that state courts’ role is considerably diminished. She also suggests that such a development
is worrisome and that private justice should constitute an additional, alternative option when it comes to
conflict resolution. This is in conformity with Article 47 CFREU speaking of effective remedies before
courts/tribunals. See also, Goldstein (n 1) 17-18. The author suggests that the impetus for ADR is more
efficient conflict resolution. 45 S Prechal, Directives in EC Law (2nd completely revised edn, OUP 2005) 133; A S S Zuckerman, ‘The
principle of effective judicial protection in EU law’ (Remedies for Breach of EU Law Revisited, King’s
College London, June 2010) http://ukael.org/past_events_24_3656132649.pdf accessed 16 March 2013. 46 Case C-210/98 P Salzgitter AG, formerly Preussag Stahl AG v Commission of the European
Communities and Federal Republic of Germany [2000] ECR I-05843, Opinion of AG Jacobs, para 142. 47 B G Garth, ‘Privatization and the New Formalism: Making the Courts Safe for Bureaucracy’ (1988) 13 Law & Social Inquiry 172. 48 Prechal, ‘Community law in national courts: the lessons from Van Schijndel’ (n 43) 706; Himsworth (n
20) 295; Goldstein (n 1) 14: public policy enforcement is also achieved via actions of individuals and
organisations seeking to guarantee that legal obligations are upheld in reality. Goldstein offers the
examples of class actions as predominantly deterrence, rather than compensatory, means.
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21
clarification of the law, or a means to control the abuse of power by the legislature and
the executive.49
These two main trajectories of civil procedure, namely conflict resolution and
subjective/objective law enforcement, may be mistaken for opposites. However, the real
relation between these fundamental functions of civil procedure is that of co-existence
and interaction.50
When parties resort to courts, they seek to resolve a dispute and they
should therefore have adequate possibilities to participate actively in proceedings. At
the same time, when opting for the judicial avenue as a means of dispute resolution,
parties cease to be direct opponents and ask a third, neutral party to enforce their
entitlements in accordance with the law.51
From that perspective, civil justice systems
are there to equally guarantee claimants’ interests in enforcing their rights, the
underlying policy considerations, and the defendants’ interests to constrain such
enforcement.52
Interlinked with the nature of the civil justice systems are the general political
and social ambitions, which influence the construction of civil procedural rules. To
begin with, civil procedural rules play a fundamental role in the functioning of a judicial
system; they secure the correctness of a court decision via the application of the law to
the facts.53
For instance, civil procedural rules on, among other things, the initiation of
court proceedings, deadlines to provide evidence, and acceptable means of proof have
49 Storskrubb (n 22) 298. It should be underscored that depending on a legal order’s attitude to the law’s
function, civil procedure rules on access to appellate procedures may vary considerably. Additionally, the
control of power abuse function will rarely be relevant when scrutinising actions by the executive, in legal
systems where distinct administrative procedures are in place. 50 Ibid, 297: Storskrubb describes P H Lindblom’s approach by citing his article: P H Lindblom
‘Domstolarnas växande samhällsroll och processens förändrade funktioner – floskler eller fakta?’
(‘Courts' growing role in society and procedure’s changed functions - empty phrases or facts?’) (2004) 3
SvenskJuristtidning 240. See also, Himsworth (n 20) 296. 51 See, H Genn, Judging Civil Justice (The Hamlyn Lectures 2008, CUP 2010) 3. 52 Himsworth (n 20) 295. 53 J Bentham, The Works of Jeremy Bentham (published under the Superintendence of his Executor, John
Bowring Edinburgh: William Tait 1838-1843 Vol 2) http://oll.libertyfund.org/title/1921 accessed 22
March 2013.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
22
as their objective the correct determination of facts and the correct applicability of
substantive rules to the facts of each case.54
Moreover, civil procedural rules can ensure that disputes are resolved within
reasonable timeframes. Rules on time limits may influence the correctness of the
decision. On the one hand, quicker court proceedings can ensure that no piece of
evidence disappears and that witness testimonies are reliable. Additionally, swift
judicial proceedings lead more quickly to the finality of the disputed relationship. Only
if a litigant can obtain and enforce a judgment within reasonable time, is there a threat
to the other party that this avenue constitutes a realistic way of enforcing one’s rights.55
On the other hand, proceedings that are finalised too quickly can have a negative impact
on the quality of the justice rendered; the time for the collection of evidence or the
preparation of the argumentation might be inadequate, increasing the risk of error.56
Another fundamental operation of civil procedural rules is to secure access to
court via litigation at a reasonable cost. Procedural rules on, inter alia, the amount of
court and legal representation fees as well as on the recovery of these fees by the
winning party may severely affect individual access to court. Equally, civil procedural
rules on the provision of legal aid for legal fees or on simplified and accelerated
proceedings can influence individuals’ capacity to enforce their rights.57
On the one
hand, in expensive judicial systems, the high quality of the judicial process outweighs
considerations on the actual amount of court fees. High litigation costs can limit
unmeritorious claims58
and excessive workload for the courts,59
and as such, constitute a
conscious decision for many legal systems. On the other hand, lower litigation costs and
54 A A S Zuckerman, ‘Justice in Crisis: Comparative Dimensions of Civil Procedure’ in S Chiarloni, P
Gottwald and A A S Zuckerman (eds), Civil Justice in Crisis (OUP 1999) 4. 55 B Feldman, H von Freyhold, and E L Vial, The Cost of Legal Obstacles to the Disadvantage of
Consumers in the Single Market (Report for the European Commission DG SANCO, 1998) 278
http://ec.europa.eu/dgs/health_consumer/library/pub/pub03.pdf accessed 16 March 2013. 56 J Leubsdorf, ‘Remedies for Uncertainty’ (1981) 61 B.U.L.Rev 132; A A S Zuckerman, ‘Quality and
Economy in Civil Procedure: The Case for Commuting Correct Judgments for Timely Judgments’ (1994) 14 OJLS 360. 57 Zuckerman, ‘Justice in Crisis: Comparative Dimensions of Civil Procedure’ (n 54) 9-10. 58 The Greek civil procedure, for instance, suffers from an excess of unmeritorious claims since the
litigation costs are low in order to facilitate access to justice. 59 Germany suffers from a high volume of litigation, which places strains on the court system.
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23
contingency fees60
can lead to wider access to justice and dispute resolution via the
judicial avenue.61
At the initial stages of development of the European Union, the
operationalisation of new rights, mainly deriving from the four fundamental freedoms,
could be accepted more easily as a one-dimensional process, focusing on the
enforcement of those rights. These were rights mainly against the Member States for not
respecting individuals’ fundamental freedoms in the EU. As a result, it would have
made little, if any, sense to also interfere with Member States’ procedural rights at
whom the Treaty was actually directed. However, the EU has considerably matured and
evolved in the meantime. Therefore, EU civil procedure intervention must embody
considerations of effective protection of the rights of individuals, enterprises or public
bodies on both sides of the dispute following from an EU law based right or obligation.
Unless the EU targets its activity towards this further prong of civil procedural
protection, EU civil procedure law will keep lacking coherence and functional
legitimacy.62
1.3 Research Focus: Dispute Resolution and Enforcement in the EU
In the EU supranational legal order, the judicial system of dispute resolution and
private enforcement of EU rights remains largely decentralised, taking place before the
60 R Moorhead, P Hurst, and R Musgrove, ‘“Improving Access to Justice” - Contingency Fees: A Study
of their operation in the United States of America - Research Paper informing the Review of Costs’ (Civil
Justice Council report, 2008)
http://www.judiciary.gov.uk/JCO%2FDocuments%2FCJC%2FPublications%2FCJC+papers%2FCivil+Ju
stice+Council+Contingency+Fees+Report.pdf accessed 16 March 2013: they suggest that the effect may
be to narrow access to justice for lower value cases, but to broaden access to justice for multi-party and
higher value cases. In addition, there is no evidence that contingency fees provide improper disincentives
to settle. 61 A J Duggan, ‘Consumer access to justice in common law countries: a survey of the issues from a law and economics perspective’ in C E F Rickett and R T G W Telfer (eds), International Perspectives on
Consumers’ Access to Justice (CUP 2003) 48-49. 62 Himsworth (n 20) 310-311. On the necessity to observe procedural fairness, see also, C Hodges,
‘Competition enforcement regulation and civil justice: what is the case?’ (2006) 43 CML Rev. 1381,
1400.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
24
Member States’ courts.
The famous Van Gend en Loos63
case established the
foundations of the principle of direct effect providing for the uniform interpretation of
the Treaty by national courts and tribunals.64
The CJEU held that the EU constitutes a
new legal order that creates rights which become part of Member States’ legal heritage,
not only where these rights are expressly granted by the Treaty, but also by reason of
obligations that the Treaty imposes in a clearly defined way upon individuals as well as
upon Member States.65
Therefore, individuals can rely before national courts on
sufficiently precise and unconditional provisions in EU Treaties66
and EU regulations67
63 Case 26-62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands
Inland Revenue Administration [1963] ECR 00001, 12. The facts of the case are widely known. Briefly,
Van Gend en Loos, a Dutch importer of a chemical product (l’ureeformaldehyde), complained to the tariff
administration due to a tax increase from 3 to 8% following a re-classification of the Benelux countries’
customs tariff. The tariff administration rejected his complaints and the applicant then turned to the
competent Dutch court, the Tariefcommissie, suggesting that the introduction of new customs duties or
the increase of the duties applicable in Member States’ commercial relations are prohibited by Article 12
EEC (‘standstill obligation’: repealed by the Amsterdam Treaty because it referred to the ‘transitional period’). 64 Member States were familiar with the notion of direct effect of ‘self-executing’ international Treaty
provisions, both in monist and dualist countries. In dualist countries, where international law needs to be
transposed into national law, individuals’ possibility to invoke these transformed national provisions
before domestic courts is more easily understood and accepted. The problem becomes more prominent in
monist countries like the Netherlands, where international law is ranked higher in the hierarchy of laws
compared to ordinary national legislation, but the issue of whether an international law provision can be
invoked before domestic courts is a matter for national constitutional law to decide. See inter alia: M
Claes, The National Courts’ Mandate in the European Constitution (Hart Publishing 2006) 74; B de
Witte, ‘Direct Effect, Primacy, and the Nature of the Legal Order’ in P Craig and G de Búrca (eds), The
Evolution of EU Law (2nd edn, OUP 2011) 325-327. 65 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration (n 63) 12-13. P Pescatore, ‘Van Gend en Loos, 3 February 1963 – A View from Within’ in
M P Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on
the 50th Anniversary of the Rome Treaty (Hart Publishing 2010) 5. 66 In a series of judgments the Court expanded considerably the doctrine of direct effect to cover Treaty
provisions on the common market, even if based on their wording further national or Union
implementation was necessary, or even if they granted Member States a power to derogate from their
provisions. See inter alia: case 28-67 Firma Molkerei-Zentrale Westfalen/Lippe GmbH v Hauptzollamt
Paderborn [1968] ECR 00143; case 13-68 SpA Salgoil v Italian Ministry of Foreign Trade, Rome [1968]
ECR 00453; case 2-74 Jean Reyners v Belgian State [1974] ECR 00631; case 43-75 Gabrielle Defrenne v
Société anonyme belge de navigation aérienne Sabena [1976] ECR 00455; case 41-74 Yvonne van Duyn v
Home Office [1974] ECR 01337. On the meaning of sufficiently precise and unconditional see inter alia: Prechal, Directives in EC Law (n 45) 243-249; T C Hartley, The Foundations of European Union Law
(7th edn, OUP 2010) 209-214. 67 See inter alia: case 93-71 Orsolina Leonesio v Ministero dell'agricoltura e foreste [1972] ECR 00287;
case 39-72 Commission of the European Communities v Italian Republic [1973] ECR 00101; case 50-76
Amsterdam Bulb BV v Produktschap voor Siergewassen [1977] ECR 00137.
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25
and even in directives.68
The aim is to safeguard the effectiveness of EU law provisions
of primary or secondary EU law against Member States’ or other individuals’ acts.69
Direct effect began as a matter of creation of individual EU law rights enforceable
before national courts. It then gradually shifted towards a matter of invocability of
certain EU law norms by individuals before national courts. Finally, it became a matter
of justiciability,70
looking at whether an EU law norm is operational71
for a national
court to apply it either as the governing rule of the case, or as a standard for review of
the legality of Member States’ actions.72
This decision went against Member States’ submissions73
and Advocate General
Roemer’s opinion,74
all arguing that the initial Treaty compact constituted an agreement
between sovereign states and was therefore enforceable in accordance with the
mechanisms explicitly created in the agreement.75
These mechanisms were Articles 169
68 See inter alia: Yvonne van Duyn v Home Office (n 66); case 9-70 Franz Grad v Finanzamt Traunstein
[1970] ECR 00825; case 148/78 Criminal proceedings against Tullio Ratti [1979] ECR 01629. 69 W van Gerven, ‘Bridging the Gap between Community and National Laws: Towards a Principle of
Homogeneity in the Field of Legal Remedies?’ (1995) 32 CML Rev. 679, 680; P Craig, ‘Once upon a
Time in the West: Direct Effect and the Federalization of EEC Law’ (1992) 12(4) OJLS 463-470. See
also, Andrea Francovich and Danila Bonifaci and others v Italian Republic (n 14). 70 For an analysis of ‘the justiciable issues in Member States’ see, A J Mackenzie Stuart (Lord), The
European Communities and the Rule of Law (The Hamlyn Trust, Steven & Sons 1977) 44-53. Lord
Mackenzie Stuart suggests that the justiciability of a matter before national courts depends on the
following five parameters: (a) the separation of powers; (b) the distinction between public and private
law; (c) the fear of a "denial of justice"; (d) the factor of constitutional control and (e) national attitudes to
the control of administrative acts. 71 Case C-128/92 H. J. Banks & Co. Ltd v British Coal Corporation [1994] ECR I-01209, Opinion of AG
Van Gerven, para 27. 72 Claes (n 64) 75-88; S Prechal, ‘Direct Effect, Indirect Effect, Supremacy and the Evolving Constitution
of the European Union’ in C Barnard (ed), The Fundamentals of EU Law Revisited: Assessing the Impact
of the Constitutional Debate (Academy of European Law, European University Institute, OUP 2007) 37-
38; De Witte (n 64) 330-331; P Pescatore, ‘The Doctrine of “Direct Effect”: An Infant Disease of
Community Law’ (1983) 8 ELR 17; Engström (n 37) 12-28. 73 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue
Administration (n 63) para 11: Germany, the Netherlands, and Belgium made written submissions to the
case. 74 Ibid, Opinion of AG Roemer, 16-30. 75 See however: J Bengoetxea, ‘The EU as (more than) an international organisation’ in J Klabbers and A
Wallendahl (eds), Research Handbook on the Law of International Organisations (Edward Elgar 2011)
448-463; Opinion 1/91 Draft agreement between the Community, on the one hand, and the countries of
the European Free Trade Association, on the other, relating to the creation of the European Economic
Area [1991] ECR I-6079, paras 19-21.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
26
EEC76
and 170 EEC,77
vesting the power to police the enforcement of the Treaty
provisions in the hands of either another Member State or the Commission.78
Consequently, it was argued that there was no need for national courts to deal with the
same issue, for the additional reason that this would change the character of the initial
Treaty agreement. What is more, Article 173(4) EEC79
recognised the possibility for
individuals to initiate court proceedings before the CJEU against Community decisions
of direct and individual concern to them.80
These arguments stem from a broader debate on the objective recourse of civil
justice systems for the enforcement of EU law. This goal of civil justice is often
juxtaposed with the various mechanisms of public enforcement ensuring the
implementation and actual application of EU rules in Member States’ legal orders.81
Important as it might be, public enforcement of EU law is not without problems.82
The
designated authorities (either at EU or at Member State level) might not have sufficient
76 Now Article 258 TFEU. 77 Now Article 259 TFEU. 78 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue
Administration (n 63) 12. 79 Now Article 263(4) TFEU. 80 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue
Administration (n 63) 6-8. 81 Either the Commission or designated national authorities in every Member State are entrusted with this
task. See for instance: Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997
on the protection of consumers in respect of distance contracts - Statement by the Council and the Parliament re Article 6 (1) - Statement by the Commission re Article 3 (1), first indent [1997] OJ L
144/19, Articles 11 and 15; Directive 2005/29/EC of the European Parliament and of the Council of 11
May 2005 concerning unfair business-to-consumer commercial practices in the internal market and
amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European
Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the
Council (‘Unfair Commercial Practices Directive’) (Text with EEA relevance) [2005] OJ L 149/22,
Article 11; Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on
injunctions for the protection of consumers' interests [1998] OJ L 166/51: this directive focuses in its
entirety on public enforcement mechanisms in the area of consumer rights. 82 See J Steiner, Enforcing EC Law (Blackstone Press Limited 1995) 11-13; Claes (n 64) 90; Craig, ‘Once
upon a Time in the West: Direct Effect and the Federalization of EEC Law’ (n 69) 454-458; R Craufurd-Smith, ‘Remedies for Breaches of EU Law in National Courts: Legal Variation and Selection’ in P Craig
and G de Búrca (eds), The Evolution of EU Law (1st edn, OUP 1999) 289: ‘the [EU] mechanisms for
enforcement were without real bite, with an emphasis on executive rather than legal supervision by a
court of law’; C Kilpatrick, ‘The Future of Remedies in Europe’ in C Kilpatrick, T Novitz and P
Skidmore (eds), The Future of Remedies in Europe (Hart Publishing 2000) 2.
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27
resources to investigate whether 28 Member States83
have violated certain EU laws in
the first place; or, even if they do, they might not have adequate resources to fund any
enforcement procedures within a Member State.84
Moreover, the Commission has
considerable discretion85
to institute infringement actions against Member States,86
which is often directed by political considerations,87
mainly the need to be on good
terms with the Member States. As a result, it tends to initiate infringement actions only
when the violation is clear and significant, usually through means of negotiation.88
Private enforcement of EU law mainly before national courts could therefore
counterbalance the weaknesses and inefficiencies of public enforcement in the EU. To
begin with, it could complement public enforcement mechanisms, relieving the
Commission’s cumbersome enforcement responsibilities and allowing it to devote more
time to its legislative duties.89
Private enforcement also reduces the Commission’s lack
83 Croatia will be the 28th EU Member State as of 1 July 2013. See, Treaty of Accession of Croatia [2012]
OJ L122/10. 84 The actual extent of public enforcement (in)efficiencies depends on the particular area of EU law
examined. Regarding the area of EU competition law see: Commission, ‘Green Paper on Damages
actions for breach of the EC anti-trust rules’ COM (2005) 672 final, 19 http://eur-
lex.europa.eu/LexUriServ/site/en/com/2005/com2005_0672en01.pdf accessed 21 March 2013; R van den
Bergh and S Keske, ‘Private Enforcement of European Competition Law: Quo Vadis?’ (2007) 4 ERCL
471. On the complementary role of public enforcement in damages claims in the area of competition law,
see, A Ezrachi and M Ioannidou, ‘Public Compensation as a Complementary Mechanism to Damages
Actions: From Policy Justifications to Formal Implementation’ (2012) 3(6) J.E.C.L. & Pract. 536. 85 See inter alia: case 247/87 Star Fruit Company SA v Commission of the European Communities [1989]
ECR 00291; case T-24/90 Automec Srl v Commission of the European Communities [1992] ECR II-
20223; Hartley (n 66) 327-328 86 Article 258 TFEU. See also Article 259 TFEU regarding the initiation of infringement proceedings by a Member State against another. The same problems arise in this type of proceeding too, only rarely
reaching the stage before the CJEU. See also, Steiner (n 82) 161-169. Craig describes it as a conflict of
interest problem resembling to the agency capture, deteriorated by the dual roles exercised by the
Commission, i.e. the judicial and the legislative. Craig, ‘Once upon a Time in the West: Direct Effect and
the Federalization of EEC Law’ (n 69) 456. 87 The recently adopted resolution regarding the introduction of fast-track infringement procedures
through the appointment of an independent Internal Market prosecutor is indicative of the inefficiencies
of the currently existing Treaty system of public enforcement of EU law. See, European Parliament,
‘Resolution of 22 May 2012 on the Internal Market Scoreboard’ 2011/2155(INI)
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2012-
0211+0+DOC+XML+V0//EN&language=EN accessed 23 March 2013. 88 Article 260 TFEU; case C-387/97 Commission of the European Communities v Hellenic Republic
[2000] ECR I-05047; case C-278/01 Commission of the European Communities v Kingdom of Spain
[2003] ECR I-14141. 89 See D Curtin, ‘The Decentralised Enforcement of Community Law Rights. Judicial Snakes and
Ladders’ in D Curtin and D O’Keeffe (eds), Constitutional Adjudication in European Community and
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
28
of knowledge of a breach of EU law. Individuals, personally wronged and damaged by
the violation of their EU rights have an increased incentive to seek the enforcement of
that right in practice.90
This contributes to higher enforcement rates of EU law.
Additionally, private enforcement can overcome the problem of political delicacies,
often halting the Commission and Member States from initiating infringement
proceedings.
The justiciability of EU law norms before national courts presupposes the
existence and use of a system of procedures, remedies, and causes of action that will
allow individuals to invoke directly effective provisions of EU law, either as a source of
rights (sword), or as a legality review standard (shield).91
Article 19 TEU suggests that
Member States are responsible for the provision of remedies ensuring effective legal
protection in the fields covered by Union law.92
In addition, the principle of national
procedural autonomy provides that in the absence of EU procedural and remedial rules,
Member States are responsible for designating the courts having jurisdiction,
determining the rules of procedure according to which national courts will protect EU
[Footnotes continued on next page]
National Law (Butterworth Ltd 1992) 34. On the limits of ‘individual enforcement in EC law’ see: S
Weatherill, ‘Addressing Problems of Imbalanced Implementation in EC Law: Remedies in an
Institutional Perspective’ in C Kilpatrick, T Novitz, and P Skidmore (eds), The Future of Remedies in
Europe (Hart Publishing 2000) 99-104. 90 This derives from the so-called “subjectivation” of EU law provisions conferring rights not only to
Member States, but also to private individuals. See, M P Maduro, We the Court: The European Court and
the European Economic Constitution. A Critical Reality of Article 30 of the EC Treaty (Hart Publishing 1998) 9. See also, Prechal, Directives in EC Law (n 45) 129: she speaks of ‘individual rights’ special
normative force, a kind of magic’. 91 De Witte (n 64) 331. See for example : case C-194/94 CIA Security International SA v Signalson SA
and Securitel SPRL [1996] ECR I-02201; case C-129/94 Criminal proceedings against Rafael Ruiz
Bernáldez [1996] ECR I-01829; case C-441/93 Panagis Pafitis and others v Trapeza Kentrikis Ellados
A.E. and others [1996] ECR I-01347. 92 Claes (n 64) 682-683: regretting the cryptic formulation of Article 19 TEU, which should have openly
mentioned national courts as ‘common courts of Union law’. See also: T Tridimas, ‘The European Court
of Justice and the Draft Constitution: A Supreme Court for the Union?’ in T Tridimas and P Nebbia (eds)
European Union Law for the 21st Century: Rethinking the New Legal Order (Hart Publishing 2004) 117;
T Tridimas, The General Principles of EU Law (2nd edn, OUP 2006).Tridimas has opined that this provision has also created a legal basis for the EU to intervene into Member States’ remedial and
procedural rules when these are deemed insufficient to ensure effective legal protection of EU rights. See
also, A Ward, Judicial Review and the Rights of Private Parties in EU Law (2nd edn, OUP 2007) 2: who
sees in Article 19 TEU the possibility for CJEU case law on Member States’ remedies and procedures to
move away from a ‘rights’ based doctrine to a justification directly based on the said Treaty provision.
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rights.93
According to Jacobs, the EU has founded its decentralised enforcement system
on the assumption that national remedies and procedural rules could guarantee a
sufficient degree of judicial protection of EU law rights.94
As a result, Member States’
courts are European courts of first instance or of general competence, responsible for
the full realisation of the substantive EU legal order, for all cases that are not subject to
the jurisdiction of the European Court of Justice.95
As a result, many scholars consider EU intervention into national procedural
regimes as a parameter of the supremacy principle, often called procedural/structural
supremacy/primacy.96
Accordingly, national courts should disapply national procedural
rules, which prevent them from giving effect to EU law. In other words, substantive
supremacy of EU law can have spillover effects on domestic procedural systems to the
93 These national procedures should not be less favourable than those governing the same right of action
on a domestic matter are and they should not render impossible in practice the exercise of EU law rights.
See, inter alia: Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland (n 9) para 5; Comet BV v Produktschap voor Siergewassen (n 34), paras 12-13; case 179/84 Piercarlo
Bozzetti v Invernizzi SpA and Ministero del Tesoro [1985] ECR 02301; case 68/79 Hans Just I/S v Danish
Ministry for Fiscal Affairs [1980] ECR 00501, para 25; Andrea Francovich and Danila Bonifaci and
others v Italian Republic (n 14) para 42. 94 F G Jacobs, ‘Enforcing Community Rights and Obligations in National Courts: Striking the Balance’ in
J Lonbay and A Biondi (ed), Remedies for Breach of EC Law (John Wiley & Sons 1997) 25-26. See also,
Engström (n 37) 2. 95 I Maher, ‘National Courts as European Community Courts’ (1994) 14(2) Legal Studies 226-243; C N
Kakouris, 'Do the Member States possess Judicial Procedural "Autonomy"?' (1997) 34 CML Rev. 1393-
1396; J S Delicostopoulos, ‘Towards European Procedural Primacy in National Legal Systems’ (2003)
9(5) ELJ 601; Claes (n 64) 58-68; T Heukels and J Tib, ‘Towards Homogeneity in the Field of Legal
Remedies: Convergence and Divergence’ in P Beaumont, C Lyons, and N Walker (eds), Convergence and Divergence in European Public Law (Hart Publishing 2002) 112; see also, Bosphorus Hava Yollari
Turizm Ve Ticaret Anonim Şirketi v. Ireland App no 45036/98 (ECtHR, 30 June 2005), para 164. 96 See inter alia: De Witte (n 64) 342-343; Delicostopoulos (n 95) 509-613. These views stem mainly
from the Simmenthal/Factortame tandem emphasising the principle of structural supremacy only in order
to further consolidate the mandate for national courts to set aside conflicting national provisions. It is not
a coincidence that these cases involved Italy and the UK, two predominantly dualist Member States. See
also: A Stone-Sweet, ‘Constitutional Dialogues in the European Community’ in A M Slaughter, A Stone-
Sweet, and J H H Weiler (eds), The European Court and National Courts – Doctrine and Jurisprudence:
Legal Change in its Social Context (Hart Publishing 1998) 316-317; P Craig, ‘Report on the United
Kingdom’ in A M Slaughter, A Stone-Sweet, and J H H Weiler (eds), The European Court and National
Courts – Doctrine and Jurisprudence: Legal Change in its Social Context (Hart Publishing 1998) 195-204; M Cartabia, ‘ The Italian Constitutional Court Case-law concerning the supremacy of European
Law: from the denial of supremacy to the supremacy under condition’ in A M Slaughter, A Stone-Sweet,
and J H H Weiler (eds), The European Court and National Courts – Doctrine and Jurisprudence: Legal
Change in its Social Context (Hart Publishing 1998) 135-140. For a view against the existence of
structural primacy, see: Claes (n 64) 124-135; Prechal, Directives in EC Law (n 45) 170-179.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
30
extent that the latter can guarantee the enforcement of substantive rights.97
The
association of the supremacy principle with Member States’ procedural regimes stems
from the Simmenthal case.98
However, if Member States’ remedial rules are not
sufficient or effective, or procedural rules are too complicated and inefficient, EU
citizens might be discouraged from going to court to enforce their EU law rights, or
might not be able to enforce properly their EU law based claims before national
courts.99
As a result, a third principle, that of effective judicial protection,100
prescribes
the scope of such intervention efforts, ‘adding flesh to the skeleton of primacy […]
helping to bring it to life’.101
Against this backdrop, I argue that the fundamental right of access to justice
(Article 47 CFREU) may be used as the primary yardstick for the future development of
EU civil procedure rules. These rules should not be one-dimensional, promoting only
one of the two facets of civil procedure law to the detriment of the other. The first
paragraph of Article 47 CFREU promotes the subjective recourse of judicial relief for
the vindication of private interests established in EU law. Civil procedure here, in the
form of effective remedial means, is not identical to conflict resolution as the primary
emphasis lies on the in-court legal protection in accordance with the rule of law.102
The
second and third paragraphs of this Article establish a series of procedural guarantees of
97 Delicostopoulos (n 95) 609. 98 Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 00629. 99 Zuckerman, ‘Justice in Crisis: Comparative Dimensions of Civil Procedure’ (n 54) 3-52; Himsworth (n
20) 310-311. Himsworth speaks of three groups of interests involved in the uniform application of EU law discourse: the public interest in guaranteeing equal enforcement of EU law, promoted either via State
action or collective action aiming at upholding responsibilities created by EU law; the private interest of
an individual in preventing the violation of an EU law provision or to get compensation in case the
provision is violated; finally, individuals’ private interest to restrain the enforcement of EU measures.
This categorisation encapsulates a call for a balanced, coherent, and legitimate approach towards the
enforcement of EU law in the interest of fairness of all affected parties. 100 This is confirmed in the recent case C-279/09 DEB Deutsche Energiehandels- und
Beratungsgesellschaft mbH v Bundesrepublik Deutschland [2010] ECR I-13849, where domestic
procedural rules on the provision of legal aid to legal persons was examined in the light of Article 47
CFREU and the right to a fair trial. See also, Hess, ‘Procedural Harmonisation in a European Context’ (n
1) 169-171. 101 A Arnull, ‘The principle of effective judicial protection in EU law: an unruly horse?’ (2011) 36(1)
ELR 51. See also, P Haapniemi, ‘Procedural Autonomy: A Misnomer?’ in in L Ervo, M Gräns, and A
Jokela (eds), Europeanisation of Procedural Law and the New Challenges to Fair Trial (European Law
Publishing 2009) 95. 102 See, ‘Explanations relating to the Charter of Fundamental Rights’ [2007] OJ C 303/17, 30.
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fair trial, aimed at both parties to the dispute and as a result, are there not only for the
enforcement of civil rights and obligations, but also for the non-vindication of such
rights.103
In other words, the right to an effective remedy and a fair trial is seen as a
means to materialise the dual goal of civil justice systems in the EU, prescribing the
scope of future EU initiatives in civil procedure law. To this end, the wording of Article
47 CFREU, and its judicial (through the CJEU and ECtHR case law) teleological
interpretation104
offer ample room for a concrete examination of existing approaches to
civil procedure harmonisation105
and identification of the better way forward.106
1.4 Research perspective: The EU right of access to justice
The pioneers in the effective access to justice movement were Cappelletti and
Garth, conceiving access to justice as a fundamental principle enabling citizens to
vindicate their substantive rights.107
Other scholars have seen access to justice as the
demand for equal treatment of prospective litigants before the courts,108
aimed at
reducing barriers due to costs, duration, and difficulties of communication in judicial
proceedings. In the late 1970s and 1980s, access to justice was perceived as part of the
legal services modern welfare states provide for the ‘weaker parties’.109
Since the 1990s,
a consensus emerged that a wide range of procedures adapted to the specific types of
103 Ibid. 104 See below, ‘2 The Right of Access to Justice in the EU: In Search of a New Role’ 39. 105 See below, ‘4 Civil procedure law in the EU: the role of the CJEU case law’ 98; ‘5 Sectoral v
Horizontal EU Civil Procedure Law: A Constitutional Conundrum?’ 133. 106 See below, ‘6 The Horizontal Approach to EU Civil Procedure Law Reconceptualised: Achieving
Greater Coherence’ 184. 107 M Cappelletti and B Garth, ‘Access to Justice and the Welfare State: An Introduction’ in M Cappelletti
and B Garth (eds), Access to Justice and the Welfare State (EUI 1981) 1. 108 See inter alia: R Moorhead and P Pleasence, ‘Access to Justice after Universalism: Introduction’ (2003) 30 Journal of Law and Society 1; R L Sandefur, ‘Fulcrum point of equal access to justice: legal
and non-legal institutions of remedy’ (2009) Loyola of Los Angeles Law Review 949, 951: ‘different
groups in a society would have similar chances of obtaining similar resolutions to similar kinds of civil
justice problems’. 109 Cappelletti and Garth (n 107).
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
32
litigation at stake had to supplement access to justice.110
Overall, the right to effective
access to justice incorporates fundamental considerations of procedural and social
justice and is not limited to requirements of procedural economy and efficiency.111
As a
result, access to justice refers to all stages prior to the initiation of court proceedings, the
trial process, and the post-trial phase of execution of judgments.112
It also refers to a
number of actors, such as litigants, judges, lawyers, and state organs.
In the EU, the right of access to justice first appeared under the principle of
effective judicial protection and the CJEU Johnston case.113
In this case, the Court
argued that effective judicial protection in the EU constitutes a general principle of law,
derived from Member States’ constitutional traditions and the European Convention on
Human Rights and Fundamental Freedoms.114
However, the term ‘access to justice’
hardly existed in EU law,115
and has been advocated mainly in the context of consumer
110 B Hess, ‘EU Trends in Access to Justice’ in C H van Rhee and A Uzelac (eds), Civil Justice between
efficiency and quality: from Ius Commune to CEPEJ (Intersentia 2008) 189-190. 111 For more recent studies from long-established international institutions, such as the World Bank, the
Council of Europe, the European Commission, or from individual stakeholders, such as consortiums of
academics and professionals confirming the wide scope of the right of access to justice, see inter alia:
Commission, ‘Study on the Transparency of Costs of Civil Judicial Proceedings in the European Union’
(Final Report, 2007)
http://ec.europa.eu/civiljustice/publications/docs/costs_civil_proceedings/cost_proceedings_final_report_
en.pdf accessed 06 March 2013; C Hodges, S Vogenauer, and M Tulibacka, The Costs and Funding of
Civil Litigation (Hart Publishing 2010); CEPEJ, European judicial systems: Efficiency and quality of
justice (Council of Europe Publishing 2010); Office of the High Commissioner for Human Rights and the
International Bar Association, Human Rights in the Administration of Justice: A Manual on Human
Rights for Judges, Prosecutors and Lawyers (Professional Training Series No. 9/Add.1, United Nations
2008) 113 http://www.ohchr.org/Documents/Publications/training9chapter4en.pdf accessed 05 March 2013; Australian Government, A Strategic Framework for Access to Justice in the Federal Civil Justice
System (Report by the Access to Justice Taskforce Attorney-General’s Department, 2009)
http://www.ag.gov.au/LegalSystem/Documents/A%20Strategic%20Framework%20for%20Access%20to
%20Justice%20in%20the%20Federal%20Civil%20Justice%20System.pdf 17 March 2013; The
International Bank for Reconstruction and Development/The World Bank, Doing Business 2011: Making
A Difference for Entrepreneurs (The World Bank and the International Finance Corporation 2010)
http://www.doingbusiness.org/~/media/fpdkm/doing%20business/documents/annual-
reports/english/db11-fullreport.pdf accessed 03 March 2013. 112 On the various stages of a broadly conceived right to access to justice from legal protection to
enforcement and civil society oversight, see: UNDP, Access to Justice. Practice Note (2004) 6
http://www.undp.org/content/dam/aplaws/publication/en/publications/democratic-governance/dg-publications-for-website/access-to-justice-practice-note/Justice_PN_En.pdf accessed 02 March 2013. 113 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary (n 12). 114 Ibid, para 18. 115 In the international arena the term access to justice has been used and defined in a few instances, such
as in Article 9 of the 1998 Aarhus Convention on Access to Information, Public Participation in Decision-
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protection in cross-border litigation.116
As a result, access to justice remained an
obscure and uncertain concept in the EU, considered by many scholars as a vague term,
inappropriate for use as a yardstick or benchmark for the review of law, and even more
so for the adoption of any legislative measures. Accordingly, access to justice was often
used as a term solely synonymous with access to courts, or with effective remedies, due
process, fair trial, or simply with judicial protection and redress.117
Consequently, access to justice was hardly used as a benchmark for the over-
enforcement of EU law, taking into account all relevant interests, namely the interests of
the defendant in the non-enforcement of EU law118
and the general interest of the justice
system in delivering just and equitable results.119
However, as long as the actual
meaning and scope of the right to access to justice is not properly defined and
assimilated, all efforts to promote only certain aspects of this right will lead to greater
fragmentation of civil justice systems, undermining the rule of law and compromising
the good functioning of democratic societies.120
After the entry into force of the Amsterdam Treaty, a genuine European Area of
Justice was created that ‘[...] must ensure that individuals and businesses can approach
courts and authorities in any Member State as easily as in their own and not to be
prevented or discouraged from exercising their rights by the complexity of the legal and
administrative systems in the Member States’.121
However, it was only after the
introduction of the European Charter and, mainly, after the enactment of the Lisbon
[Footnotes continued on next page]
Making and Access to Justice in Environmental Matters, and in Article 13 of the 2006 Convention on the
Rights of Persons with Disabilities. 116 Commission, ‘Green Paper on Legal Aid in Civil Cases: The Problems Confronting the Cross-border
Litigant’ COM (2000) 51 final. 117 See, FRA, Access to justice in Europe: an overview of challenges and opportunities (Publications
Office of the European Union 2011) 16 http://fra.europa.eu/fraWebsite/attachments/report-access-to-
justice_EN.pdf accessed 02 March 2013. 118 To this effect see, case C-450/06 Varec SA v Belgian State [2008] ECR I-00581, para 52. 119 See inter alia: Himsworth, (n 20) 291; Genn (n 51). 120 See, C Rozakis, ‘The Right to a Fair Trial in Civil Cases’ (2004) 4 J.S.I.J. 96-106; Delcourt v. Belgium
App no 2689/65 (ECtHR, 17 January 1970), para 25. 121 Commission, ‘Communication from the Commission to the Council and the European Parliament-
Biannual Update of the Scoreboard to review Progress on the Creation of an Area of "Freedom, Security
and Justice" in the European Union’ COM (2000) 782 final, point 3.1.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
34
Treaty that access to justice was established in EU law discourse. Article 47 (3) CFREU
refers to the availability of legal aid as an element of effective access to justice. In
addition, Article 67(4) TFEU imposes on Union institutions the duty to facilitate access
to justice, whereas Article 81(2)(e) TFEU recognises the need for the adoption of
approximation measures in the area of judicial cooperation in civil matters with the aim
of promoting effective access to justice.
Article 47 CFREU122
draws inspiration from the European Convention,
combining the protection provided by two distinct Convention rights, namely Article 6
ECHR on the right to a fair trial123
and Article 13 ECHR on the right to an effective
remedy. Accordingly, the Strasbourg Court has produced abundant case law on the
various procedural parameters of this right: the doctrine of reasonable length of
proceedings;124
the conditions for a fair hearing;125
and guarantees of judicial
impartiality.126
Judicial elaboration of this article has given expression to a common,
primary conception of justice and fair trial within the European countries,127
and it is
generally accepted that this right is also part of Member States’ legal cultures and
constitutional traditions.128
However, there is a significant distinction between the mere
122 Article 47 CFREU on the ‘Right to an effective remedy and to a fair trial’ reads as follows:
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the
right to an effective remedy before a tribunal in compliance with the conditions laid down in this
Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and
impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is
necessary to ensure effective access to justice.
Article 47 CFREU has codified the principle of effective judicial protection: joined cases T-439/10 and T-
440/10 Fulmen (T-439/10) and Fereydoun Mahmoudian (T-440/10) v Council of the European Union
[2012] OJ C 133/24, para 87. 123 It should be noted that the text of Article 6 constitutes only the starting point, which the extensive
ECtHR case law has further explicated and substantiated. 124 König v. Germany App no 6232/73 (ECtHR, 28 June 1978), para 96; Di mauro v. Italy App no
34256/96 (ECtHR, 28 July 1999), para 23. 125 Artico v. Italy App no 6694/74 (ECtHR, 13 May 1980), para 32; J.J. v. The Netherlands App no 21351/93 (ECtHR, 27 March 1998), para 43. 126 Golder v. United Kingdom App no 4451/70 (ECtHR, 21 February 1975), paras 34-37; Sramek v.
Austria App no 8790/79 (ECtHR, 22 October 1984), para 42. 127 Kerameus, ‘Procedural Implications of Civil Law Unification’ (n 40) 154-156. 128 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary (n 12) para 18.
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legal recognition of Articles 6 and 13 ECHR and their actual implementation.129
This is
aggravated by the lack of an enforceable nature of ECtHR judgments, allowing at the
end of the day differing levels of implementation and legislation adaptation from one
Member State to another.
It is against this background, I advocate the use of Article 47 CFREU procedural
guarantees as the starting point for the development of EU civil procedure law. The
Charter of Fundamental Rights of the European Union (CFREU) has codified the right
of access to justice, which, after the enactment of the Lisbon Treaty, has gained the
legal status of primary EU law, binding EU institutions and Member States.130
This
right associates effective remedies with in-court justiciability and secures access to
justice for everyone ‘whose rights and freedoms guaranteed by the law of the Union are
violated’.131
It also sets the fundamental procedural aspects of the right to access the
courts, namely fair and public hearing, reasonable length of proceedings, and the
independence and impartiality of the judging court/tribunal.132
Rather recent CJEU case
law refers to this provision with an increased frequency, even in cases where initial
references for a preliminary ruling do not raise an issue of application of the relevant
right.133
The key difference with the ECtHR case law is that the EU constitutes a sui
129 L van Puyenbroeck and G Vermeulen, ‘Towards minimum procedural guarantees for the defence in
criminal proceedings in the EU’ (2011) 60 (4) ICLQ 1017. 130 Article 6 TEU. 131 Case 5/88 Hubert Wachauf v Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 02609,
para19; Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary (n 12); case 222/86 Union nationale des entraîneurs et cadres techniques professionnels du football (Unectef) v Georges
Heylens and others [1987] ECR 04097; case C-97/91 Oleificio Borelli SpA v Commission of the
European Communities [1992] ECR I-06313; A W Heringa and L Verhey, ‘The EU Charter: Text and
Structure’ (2001) 8 MJ 27. 132 See: joined cases C-317/08, C-318/08, C-319/08 and C-320/08 Rosalba Alassini v Telecom Italia SpA
(C-317/08), Filomena Califano v Wind SpA (C-318/08), Lucia Anna Giorgia Iacono v Telecom Italia SpA
(C-319/08) and Multiservice Srl v Telecom Italia SpA (C-320/08) [2010] ECR I-02213, para 61; Draft
Charter of Fundamental Rights of the European Union [2000] Charte 4473/00, 41; case 294/83 Parti
écologiste "Les Verts" v European Parliament [1986] ECR 01339, para 23; joined cases T-377/00, T-
379/00, T-380/00, T-260/01 and T-272/01 Philip Morris International, Inc and Others v Commission of
the European Communities. [2003] ECR II-00001, paras 120-122; EU Network of Independent Experts on Fundamental Rights, ‘Commentary of the Charter of Fundamental Rights of The European Union’
(2006) 361 http://ec.europa.eu/justice/fundamental-rights/files/networkcommentaryfinal_en.pdf accessed
23 March 2013. 133 DEB v Bundesrepublik Deutschland (n 91). See also, Hess, ‘Procedural Harmonisation in a European
Context’ (n 1) 166.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
36
generis legal order,134
with increased central enforcement capacity compared to other
international organisations.135
More importantly, Article 47 CFREU establishes a more
extensive framework of protection of fundamental procedural guarantees in case of
violation of EU law.136
1.5 Methodological Approach and Main Research Questions
In this thesis, I investigate the role of civil procedure law in the functioning of
the supranational legal order. My research angle is essentially European and primarily
institutional, investigating which EU institutions are better suited to employ the right of
effective access to justice as a guiding tool for the future development of a coherent EU
civil procedure law. Since I focus on civil procedure, in my analysis I will mainly look
at private law cases. However, I will adopt a broader scope of investigation where the
distinction between criminal, administrative, and civil cases is not of material
importance. This will be mainly the case with the CJEU case law on national procedural
autonomy and remedial means. In addition, I will examine a few indicative pieces of EU
secondary legislation, introducing civil procedure rules at an EU-wide level. The
common denominator among these legislative instruments is their legal basis in the EU
134 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue
Administration (n 63) 12; Bengoetxea (n 75) 448-465; F C Mayer, ‘Van Gend en Loos: The Foundation
of a Community of Law’ in M P Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart Publishing 2010) 19-21;
G Di Federico, ‘Fundamental Rights in the EU: Legal Pluralism and Multi-Level Protection After the
Lisbon Treaty’ in G di Federico (ed), The EU Charter of Fundamental Rights from Declaration to
Binding Instrument (Vol 8: Ius Gentium: Comparative Perspectives on Law and Justice, Springer 2011)
17; G Sacerdoti, ‘The European Charter of Fundamental Rights: From a Nation-State Europe to a
Citizens' Europe’ (2002) 8 Colum.J.Eur.L. 39. 135 Article 260 TFEU; Article 267 TFEU: the decentralised enforcement of EU law through the reference
for a preliminary ruling and the ensuing necessity for Member States’ domestic courts to give the final
judgment also increases the enforceability prospects, since at the end of the day it is the State’s own
institutions that deliver the judgment. 136 For a detailed comparison between Articles 6 and 13 ECHR and 47 CFREU see below, ‘2.3 The fundamental procedural guarantees of the right of access to justice: the standard of protection’ 50.
However, bear in mind the UK-Poland Protocol (No 30) on the application of the Charter of Fundamental
Rights of the European Union on the rather limited practical effects of which see, inter alia: D Anderson
and C C Murphy, ‘The Charter of Fundamental Rights’ in A Biondi, P Eeckhout, and S Ripley (eds), EU
Law after Lisbon (OUP 2012) 166-169.
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37
Treaties as well as their orientation towards the approximation of certain areas of EU
civil procedure. I will address the actual effect of these instruments on civil procedure
law harmonisation and access to justice. Finally, I will analyse existing law (descriptive
analysis) only to support the ways in which it needs to be reformed and systematised
based on the right of access to justice in the EU (normative analysis).137
To this end, I have broken down my thesis in six main sub-topics:
i. May the fundamental right to effective access to justice be used as tool
for the development of EU civil procedure rules? Is there an obligation
for EU institutions to promote access to justice in the first place? In
addition, is this right determinate enough regarding the envisaged level
of protection to prescribe the scope of EU regulatory action? (Chapter 2)
ii. When should the EU develop civil procedure rules that promote access to
justice? Which are the policy perspectives justifying the development of
EU civil procedure law? Are there any countervailing considerations that
may limit the significance and practical realisation of any harmonisation
efforts? (Chapter 3)
iii. To what extent, if at all, do existing modes of civil procedure
harmonisation and particularly CJEU ad hoc procedural rules promote
greater access to justice in the EU? Is a legislative approach for the
development of EU civil procedure rules better suited to promote access
to justice in the supranational legal order? (Chapter 4)
iv. Which particular form of action may better accommodate considerations
of effective access to justice in the EU: secondary procedural rules
applicable to specific areas of substantive EU law, as in the example of
IPRED, or horizontal procedures for all civil matters having ‘cross-
border implications’, as in the example of ESCP? What lessons can be
learnt for the promotion of access to justice via EU civil procedure rules
137 See inter alia, A D’Amato, Jurisprudence: A descriptive and Normative Analysis of Law (Martinus
Nijhoff Publishers 1984).
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
38
based on current discussions for a coherent approach to collective
redress? (Chapter 5)
v. What is the right way forward for the development of coherent civil
procedure rules promoting the right to effective access to justice? What
is the appropriate legal basis for intervention into Member States’
procedural systems in a systematic and comprehensive way? What are
the particular normative implications for the relevant legal basis?
(Chapter 6)
vi. Concluding Remarks (Chapter 7)
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
39
2 The Right of Access to Justice in the EU: In Search of a New Role
2.1 Introduction
In the introductory chapter, I argued that civil procedure rules are mixed goods,
simultaneously concentrating features of both public and private goods. They can serve
as means of private dispute resolution, only affecting the conflicting parties; equally,
they contribute to the general implementation and enforcement of law and policies,
fulfilling a public function.1 In other words, civil procedure regulation has a law
enforcement focus, on top of its conflict resolution character.2 It is not only a matter for
private parties to regulate the procedure along the lines of a private justice model;3 when
individuals turn to the courts, they do not ask the court simply to resolve a dispute, but
primarily, to enforce their entitlements according to the law.4
In the EU supranational legal order, the judicial system of dispute resolution and
private enforcement of EU law remains largely decentralised, taking place before
Member States’ courts.5 Article 19 TEU suggests that Member States are responsible
for the provision of remedies ensuring effective legal protection in the fields covered by
Union law.6 As Member States’ procedural regimes are considerably divergent, EU
institutions intervene, more and more often, in national procedural regimes to secure
effective EU law enforcement in an equivalent manner across the EU. Therefore, access
1 S Delabruyère, ‘On ‘Legal Choice’ and legal competition in a federal system of justice. Lesson for
European legal integration’ in A Marciano and J M Josselin (eds), From Economic to Legal Competition:
New Perspective on Law and Institutions in Europe (Edward Elgar 2003) 22-23. 2 A A S Zuckerman, ‘The principle of effective judicial protection in EU law’ (Remedies for Breach of
EU Law Revisited, King’s College London, June 2010) 1-2. 3 W M Landes and R A Posner, ‘Private Enforcement of Law’ (1975) 4 J. Legal Stud. 1-46. See also, S
Shavell, ‘The Fundamental Divergence between the Private and Social Motive to Use the Legal System’
(1997) 26 J. Legal Stud. 575-612. 4 See above, ‘1.2.2 The fundamental goals and functions of civil justice’ 19. 5 Case 26-62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 1. 6 M Claes, The National Courts Mandate in the European Constitution (Hart Publishing 2006) 682-683;
T Tridimas, ‘The European Court of Justice and the Draft Constitution: A Supreme Court for the Union?’
in T Tridimas and P Nebbia (eds), European Union Law for the 21st Century: Rethinking the New Legal
Order (Hart Publishing 2004) 117; T Tridimas, The General Principles of EU Law (2nd edn, OUP 2006).
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
40
to justice provides the yardstick for a balanced approach. On the one hand, it facilitates
effective enforcement of EU law rights via the establishment of the necessary
procedural guarantees to allow for a realistic opportunity of judicial redress through
recourse to court. On the other hand, it also allows for fundamental considerations of
procedural efficiency and fairness to make their way in civil dispute resolution, catering
for the rights of defence and the good administration of justice. Opting for one side only
leads to a fragmentary and incomplete procedure, lacking any legitimation and
functionality.7
In this chapter, I will attempt to explain the meaning, scope, and content of the
right to effective access to justice in the EU, further exploring its role for the future
development of EU civil procedure law. I will first look at the provisions of Article 51
CFREU regarding the passive personal scope of application8 of the Charter rights, and
subsequently of the right of access to justice. This analysis will offer an initial answer to
the main research question, namely whether EU institutions should use the right to an
effective remedy, and a fair trial in the EU (Article 47 CFREU) as a guiding tool for the
future development of civil procedure rules.9 I will investigate the actual level of
protection under Article 47 CFREU in the second part of this chapter. For that purpose,
I will focus on the actual wording of this article, also looking at the relevant CJEU case
law on the principle of effective judicial protection, and the Strasbourg case law on the
ECHR counterparts of the right of access to justice, namely Articles 6 and 13 ECHR. In
doing so, I will identify the range of procedural obligations incumbent on EU
institutions for the promotion of the right of access to justice when developing civil
7 See, E Storskrubb, Civil Procedure and EU law. A Policy Area Uncovered (OUP 2008) 311: identifying
in the themes of fair trial and access to justice the potential for the policy area of civil justice cooperation
to ‘break free from its schematic premises’. See also, M Ross, ‘Effectiveness in the EU Legal Order:
Beyond Supremacy to Constitutional Proportionality’ (2006) 31 ELR 476, 495-496, suggesting that the
principle of effectiveness performs a dual role in establishing the point of intervention in national
procedural regimes, as well as the extent of remedial review by the national courts. 8 Term first used by Curtin and Ooik as opposed to active personal scope of application. The former refers to the persons bound to respect and promote the application of the Charter. The latter refers to the persons
vested with the Charter rights and freedoms. See, C Curtin and R van Ooik, ‘The sting is always in the
tail. The personal scope of application of the EU Charter of Fundamental Rights’ (2001) 8 MJ 102, 103. 9 See however, A von Bogdandy, ‘The European Union as a Human Rights Organization? Human Rights
at the Core of the European Union’ (2000) 37 CML Rev. 1333.
Zampia G Vernadaki, UCL Laws
41
procedure rules in the EU. I will summarise the main findings of this analysis at the end
of the chapter.
2.2 The constitutionalisation of the right of access to justice and repercussions
for EU civil procedure law
European constitutionalism reached its apogee with the drafting and subsequent
binding force of the EU Charter. From a substantive perspective, the EU Charter fits
within the European constitutional picture because it compiles and reiterates the
fundamental values of the autonomous EU legal order. From a formalistic point of view,
the binding character of the Charter, equivalent to primary EU law, leads to increased
democratic legitimacy for the EU legal order.10
This section will sketch the general
framework of and the politics behind the development of an EU fundamental human
rights policy. On the one hand, the Union’s desire to have a say in the area of
fundamental human rights, and on the other hand, Member States’ determination to
maintain their autonomy and sovereignty in that same area has resulted in the drafting
of a Charter document that lacks clarity and coherence.11
The analysis in this part will
offer some tools for the overall interpretation of the right of access to justice in the EU
and the appraisal of the possibility for this right to be used as a guiding principle for the
future development of civil procedure rules in the EU. To this end, I will read the access
10 Article 6(1) TEU; Pernice sees in the legally binding character of the Charter the creation of a “new
explicit normative foundation” for Union action in the area of freedom, security and justice in, I Pernice,
‘The Treaty of Lisbon and Fundamental Rights’ in S Griller and J Ziller (eds), The Lisbon Treaty: EU
Constitutionalism without a Constitutional Treaty? (European Community Studies Association of Austria
Publication Series, Vol 11, Springer 2008) 236-239; C N Kakouris, ‘The Judicial Protection of Individual
Rights in the European Communities’ (1993) 16 Hastings Int'l & Comp.L.Rev. 539. 11 On the ambiguous nature of EU fundamental rights protection and subsequently of the EU Charter of
Fundamental rights see, inter alia: G de Búrca, ‘The drafting of the European Union Charter of
Fundamental Rights’ (2001) 26 ELR 126-138; Draft Charter of Fundamental Rights of the European
Union − Horizontal questions (Information Note) [2000] Charte 4111/00, Body 3, paras 6 and 20; P Carozza, ‘The Member States’ in S Peers and A Ward (eds), The European Union Charter of
Fundamental Rights (Hart Publishing 2004) 35-39; M P Maduro, ‘The Double Constitutional Life of the
Charter of Fundamental Rights of the European Union’ in T K Hervey and J Kenner (eds), Economic and
Social Rights under the EU Charter of Fundamental Rights – A Legal Perspective (Hart Publishing 2003)
269.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
42
to justice provisions of Article 47 CFREU in context, namely in the light of the
Charter’s horizontal clauses and the general provisions of Article 6 TEU.
2.2.1 A proactive view
Historically, Member States perceived the development of fundamental rights in
the EU as a constitutional limit to further expansion of EU law and to the promotion of
European integration. According to this traditional view, fundamental rights serve a
defensive function, namely restraining EU interference with individual liberty.
Therefore, individuals are vested with justiciable rights against the EU in cases of
proved violations of these rights. In this context, initial CJEU case law rejected claims
related to fundamental rights protection, either because fundamental rights did not
constitute general principles of EU law, or and most importantly, because this could
restrain EU powers.12
However, in order to avoid a situation where national courts would review EU
measures against their domestic fundamental rights,13
CJEU shifted its case law,
explicitly recognising fundamental rights as general principles of EU law. These
principles accrued from Member States’ common constitutional traditions and from
12 See: case no 1-58 Friedrich Stork & Cie v High Authority of the European Coal and Steel Community
[1959] ECR 17; joined cases 36, 37, 38-59, and 40-59 Präsident Ruhrkolen-Verkaufsgesellschaft mbH,
Geitling Ruhrkohlen-Verkaufsgesellschaft mbH, Mausegatt Ruhrkohlen-Verkaufsgesellschaft mbH and I.
Nold KG v High Authority of the European Coal and Steel Community [1960] ECR 00423; case 40-64
Marcello Sgarlata and others v Commission of the EEC [1965] ECR 00215; Tridimas, The General
Principles of EU Law (n 6) 301. See however, G de Búrca, ‘The Evolution of EU Human Rights Law’ in
P Craig and G de Búrca (eds), The Evolution of EU Law (OUP 2011) 465-497, examining the earliest steps of EU engagement with human rights protection during 1951-1952 as depicted in the 1952 Comité
d’études sur une constitution européene, and the 1952-53 draft Treaty on a European Political
Community. These documents set the foundations of an EU policy on human rights protection, whereby
EU institutions had a prominent monitoring, and review role in the application of human rights within the
Member States. Additionally, a close constitutional relationship between the EU and the ECHR and their
respective courts was established, whereas the EU human rights policy extended to both internal and
external EU policies and relations. 13 See: Bundesverfassungsgericht decision of 18 October 1967, EEC Regulations Constitutionality Case,
BVerfGE 22, 293: in view of the lack of human rights protection in the EU, the transfer of powers from
Germany to the EU should be filtered through domestic constitutional fundamental rights provisions; case
2 BvL 52/71 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (Bundesverfassungsgericht) judgment of 22 May 1974 [1974] 2 CMLR 540, 551; case 183
Frontini v. Ministero delle Finanze, Italian Constitutional Court of 27/12/73 reported in [1974] 2 CMLR
383-90; J Coppel and A O’Neill, ‘The European Court of Justice: Taking Rights seriously?’ (1992) 29
CML Rev. 670; E F Defeis, ‘Human Rights and the European Court of Justice: An Appraisal’ (2007)
31(5) Fordham Int’l L.J. 1110.
Zampia G Vernadaki, UCL Laws
43
international human rights treaties to which Member States participated.14
However, as
these principles bound EU institutions in accordance with the structure and objectives of
the Union, they were autonomous from their initial sources of inspiration and
characteristic of the Union’s human rights policy.15
Consequently, as fundamental rights
made their way into the Treaties, instead of leading to the limitation of the EU
competences as Member States initially were hoping for, they actually expanded the
reach of the then existing EU competences, allowing more vigorous and systematic
scrutiny of national measures implementing or derogating from Union law.16
Specifically, for the EU, fundamental rights constituted a means to facilitate EU
integration, setting it free from its purely economic and schematic premises, opening up
the prospects for the gradual creation of a European political identity.17
This alternative
view focuses on the positive function of fundamental rights, imposing a duty on the EU
to remedy institutional deficiencies by making appropriate provisions for the protection
of fundamental rights. Unlike the individualised, retrospective, and breach-dependant
function of traditional fundamental rights, the alternative approach perceives
fundamental rights as fulfilling a collective, proactive role, aiming at gradual
institutional change and freedom enhancement.18
While judicially enforceable
individual rights constitute an undoubtedly essential element in guaranteeing
fundamental rights in the supranational legal order, the EU institutions need to
complement them by appropriate legislative action addressing the institutional
14 See: case 29-69 Erich Stauder v City of Ulm - Sozialamt [1969] ECR 00419; case 11-70 Internationale
Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 01125,
para 4; case 149/77 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1978]
ECR 01365; case 4-73 J. Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European
Communities [1974] ECR 00491, para 13; case 44/79 Liselotte Hauer v Land Rheinland-Pfalz [1979]
ECR 03727, para 15. 15 See, Tridimas, The General Principles of EU Law (n 6) 304: ‘respect for the same right does not mean
reaching the same outcome on the facts’. 16 Carozza (n 11) 38. 17 On the fundamental role of human rights in the EU see for example: 1973 European Council
Declaration on European identity; 1978 Declaration of the Council on Democracy in Copenhagen; 1977 Joint Declaration of the European Parliament, Council, and Commission of the European Communities
[1977] 0J C103/1; various Council Declarations and Resolutions on Racism and Xenophobia; 1989
Declaration of Fundamental Rights and Freedoms by the European Parliament [1989] OJ C120/51. 18 S Fredman, ‘Transformation or Dilution: Fundamental Rights in the EU Social Space’ (2006) 12(1)
ELJ 41–60.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
44
challenges for the implementation of these individual rights. As a result, the defensive
and proactive functions of fundamental rights should be seen as indispensable aspects of
the EU regulatory system. To perceive them as opposites only undermines the overall
level of fundamental rights protection in the EU.19
In this light, individualised
fundamental rights are effectively integrated, playing a prescriptive, guiding role for the
future operation of EU policy.20
This duality in the EU fundamental rights policy was maintained in the Charter
and can be evinced in its general provisions, and mainly Article 51 CFREU, providing
that EU institutions and Member States when implementing Union law should ‘respect
the rights, observe the principles and promote the application thereof’.21
Therefore, it
draws a distinction between ‘respect’ for the rights (defensive function) and ‘promotion’
of their application (proactive function).22
Applying this provision to the right to
effective remedy and fair trial, it follows that EU institutions and Member States should
systematically and consistently scrutinise their legislation for compliance with the right
to effective remedy and fair trial, abstaining from activities that could actively, or
19 See, S Simitis et al., Affirming fundamental rights in the European Union: time to act (Office for
Official Publications for the European Communities 1999) 19 http://bookshop.europa.eu/en/affirming-
fundamental-rights-in-the-european-union-
pbCE2199181/?CatalogCategoryID=cOwKABstC3oAAAEjeJEY4e5L accessed 1 January 2013. 20 See, G de Búrca, ‘The Constitutional Challenge Of New Governance In The European Union’ (2003)
28(6) ELR 814–839. 21 See, G De Búrca, ‘Fundamental Rights and Citizenship’ in B de Witte (ed), Ten Reflections on the
Constitutional Treaty for Europe (EUI Robert Schumann Centre 2003) 21. For a presentation and analysis of the various versions of Article 51 CFREU before the final adoption of the Charter see, inter
alia: P Eeckhout, ‘The EU Charter of Fundamental Rights and the Federal Question’ (2002) 39 CML
Rev. 954-956.
Article 51 CFREU currently reads as follows:
The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of
the Union with due regard for the principle of subsidiarity and to the Member States only when
they are implementing Union law. They shall therefore respect the rights, observe the principles
and promote the application thereof in accordance with their respective powers and respecting
the limits of the powers of the Union as conferred on it in the Treaties.
The Charter does not extend the field of application of Union law beyond the powers of the
Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties.
22 P Craig and G de Búrca, EU Law: Text, Cases, and Materials (4th edn, OUP 2008) 415: they refer to
Commissioner Vitorino’s speech on the future of fundamental rights in Europe, who explicitly argued that
the Charter rights should have a positive effect in the promotion of human rights via the creation of
policies related to them.
Zampia G Vernadaki, UCL Laws
45
passively, violate it (defensive function).23
Additionally, they should adopt legislative
measures within the remit of their competences, to ensure that EU citizens enjoy
effective access to justice of the standard and calibre required by Article 47 CFREU
(proactive function).24
As will become apparent below,25
Article 47 CFREU introduces a whole range
of positive obligations for an effective remedy before a tribunal: legal aid; a fair trial
through equality of arms and adversariality; a public hearing; the timely execution of
judgments; a reasonable length of the proceedings; and, for independent and impartial
tribunals established by law. It also establishes certain limitations to State action in the
form of negative duties for non-interference. These involve mainly the right of access to
courts and its legitimate limitations through procedural rules on time limits, legal
standing, evidentiary rules, and rules on notification and service of documents. The
CJEU case law on the principle of effective judicial protection and the ECtHR case law
on Articles 6 and 13 ECHR confirm that both categories of duties stemming from
Article 47 CFREU constitute justiciable individual rights that right bearers can invoke
before national courts in cases of violation. This right forms a unified ensemble,
whereby the distinction between negative and positive duties deriving from the same
23 On the obligation to check the compatibility of EU legislative proposals against Charter fundamental
rights see: Commission ‘Compliance with the Charter of Fundamental Rights in Commission legislative
proposals - Methodology for systematic and rigorous monitoring’ (Communication) COM (2005) 172
final; Commission, ‘Impact Assessment Guidelines’ SEC (2009) 92
http://ec.europa.eu/governance/impact/commission_guidelines/docs/iag_2009_en.pdf accessed 16 March 2013; Commission, ‘Report on the practical operation of the methodology for a systematic and rigorous
monitoring of compliance with the Charter of fundamental rights’ COM (2009) 205 final. 24 J F Akandji-Kombe, Positive obligation under the European Convention on Human Rights: A guide to
the implementation of the European Convention on Human Rights (Human Rights Handbooks, No.7,
Council of Europe 2007) 62 http://www.echr.coe.int/NR/rdonlyres/1B521F61-A636-43F5-AD56-
5F26D46A4F55/0/DG2ENHRHAND072007.pdf accessed 22 March 2013; S Fredman, Human Rights
Transformed: Positive Rights and Positive Duties (OUP 2008) 9-62; Explanations Relating To the
Charter of Fundamental Rights [2007] OJ C303/17, 33; Draft Charter of Fundamental Rights of the
European Union [2000] Charte 4473/00 CONV 49, 48; J H H Weiler and S C Fries, ‘A Human Rights
Policy for the European Community and Union: The Question of Competences’ in P Alston, M Bustelo,
and J Heenan (eds), The EU and Human Rights (OUP 1999) 155: ‘abstaining from taking action is just as likely to cause an obstruction to fundamental human rights as would a positive violation’. See also, case
C-68/95 T. Port GmbH & Co. KG v Bundesanstalt für Landwirtschaft und Ernährung [1996] ECR I-
06065, para 40. 25 See below, ‘2.3 The fundamental procedural guarantees of the right of access to justice: the standard of
protection’ 50.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
46
very right, is not always a straightforward process. It would also be rather arbitrary if
judges enforced one – negative – and not the other – positive – side of the same coin.26
While justiciable individual rights are significant for the practical and effective
protection of fundamental rights, they come with certain limitations.27
Specifically, the
justiciability of individual rights is solely concerned with the protection of an
individual’s self-realisation and freedom of choice and action. It completely disregards
the collective and institutional function of fundamental rights in a democratic society,
whereby the failure to guarantee fundamental rights is not necessarily attributable to
individual perpetrators. Finally, ad hoc court judgments are inherently limited in
responding to the institutional and distributive intricacies of fundamental rights.28
As a
result, the creation of an individually justiciable right of access to justice should be
complemented by legislative actions, implementing and further safeguarding the various
parameters of this individual right.
Instead of perceiving Article 47 CFREU as a limitation to future EU instruments
in civil procedure law, only looking at potential violations and breaches, this Article
should be seen as a tool for the development of more systematic and coherent EU civil
procedure law. In other words, EU institutions should not only respect Article 47
CFREU, but they should primarily promote its application through the measures
adopted in the area of civil procedure law. Nevertheless, EU institutions can legislate
only in the areas where the EU has exclusive or shared competence as specified in the
Treaties (principle of conferral).29
The preamble of the Charter explicitly provides that
EU institutions should consider fundamental rights in the context of the principle of
26 For further analysis and argumentation on the justiciability of positive human rights see, inter alia:
Fredman, Human Rights Transformed: Positive Rights and Positive Duties (n 24) 92-123; EU Network of
Independent Experts on Fundamental Rights, ‘Commentary of the Charter of Fundamental Rights of The
European Union’ (June 2006) 395-396 http://ec.europa.eu/justice/fundamental-
rights/files/networkcommentaryfinal_en.pdf accessed 16 March 2013; Tridimas, The General Principles
of EU Law (n 6) 367. 27 On the limitations of CJEU civil procedure rules to promote the right of access to justice in the EU, see below, ‘4.3 Recasting CJEU case law on national procedural autonomy: lessons learned for civil
procedure harmonisation in the EU’ 123. 28 See, Fredman, ‘Transformation or Dilution: Fundamental Rights in the EU Social Space’ (n 18) 48. 29 Articles 4(1) and 5(1) TEU. See also, A Arnull, ‘From Charter to Constitution and beyond:
fundamental rights in the new European Union’ (2003) Win PL 780-781.
Zampia G Vernadaki, UCL Laws
47
subsidiarity.30
Moreover, Article 51(1) CFREU stresses that the Charter binds EU
institutions and bodies in conformity with the principle of subsidiarity. Subsidiarity
presupposes that there is shared EU competence, but also that action at state level may
be more beneficial in terms of the effect and scale of a proposed EU measure.31
The Charter mentions repeatedly that fundamental rights should not lead to new
EU powers not established in the Treaties.32
One could thus theorise that the reference
to subsidiarity paves the way for the future impact of the Charter rights, whereby the
EU has competence for all Charter rights and the principle of subsidiarity comes at a
second stage of control to limit inappropriate use of this competence. Given the
experience in other federal systems, this seems probable.33
Despite the possibility of
such development in the future, I adopt a more pragmatic approach in accepting there is
no general EU competence regarding fundamental rights. There are, however, certain
Treaty articles that constitute either straightforward competence bases for specific
fundamental rights34
or other competence bases bearing directly to fundamental human
rights. EU institutions can use these Treaty competences in order to promote the
protection of fundamental rights within the EU.35
This is exactly the meaning of the ‘promote the application’ phrase in Article
51(1) CFREU; it recognises that there is more to fundamental rights protection than a
30 Charter of Fundamental Rights of the European Union (CFREU) [2012] OJ C326/02, Preamble. 31 Article 5(3) TEU. 32 Article 51(2) CFREU; see also, Article 6(1) TEU. 33 See T von Danwitz, ‘The Charter of Fundamental Rights of the European Union between Political
Symbolism and Legal Realism’ (2000-2001) 29 Denv.J.Int'l L.& Pol'y 304-305. Danwitz mentions the
examples of the United States, Canada, Switzerland, and Germany, where the adoption of a strong
fundamental rights jurisdiction on the federal level resulted in the creation of uniform legal standards and
significant harmonisation effects across the countries. 34 See for example Article 19 TFEU (then Article 13 TEC) used as a legal basis for Council Directive
2000/43/EC on the equal treatment of persons irrespective of racial or ethnic origin [2000] OJ L180/22,
and Council Directive 2000/78/EC on a general framework for equal treatment in employment and
occupation [2000] OJ L303/16. 35 See inter alia: Eeckhout, ‘The EU Charter of Fundamental Rights and the Federal Question’ (n 21)
945-994; M P Maduro, ‘The Double Constitutional Life of the Charter of Fundamental Rights of the European Union’ in T K Hervey and J Kenner (eds), Economic and Social Rights under the EU Charter
of Fundamental Rights – A Legal Perspective (Hart Publishing 2003); O de Schutter, ‘The
Implementation of the EU Charter of Fundamental Rights through the Open Method of Coordination’
(Jean Monnet Working Paper 07/04) 19-20
http://centers.law.nyu.edu/jeanmonnet/archive/papers/04/040701.pdf accessed 31 January 2013.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
48
mere passive duty of non-violation, which may have to be supported through
appropriate EU regulatory action.36
This reading of Article 51(1) CFREU is not in
tension with Article 51(2) CFREU, which provides that the Charter ‘does not establish
any new power or task for the Community or the Union, or modify powers and tasks
defined by the Treaties’. The reason is that under the current constitutional scheme, EU
institutions may implement and secure most of the Charter rights based on the existing
attribution of competences. Consequently, Charter rights may constitute a guiding tool
for the adoption of certain initiatives at EU level, influencing their design and
implementation.37
What is more, effective access to justice constitutes, as of December 2009, an
explicit justification for the approximation of Member States’ laws in the field of civil
justice cooperation based on Articles 67 and 81 TFEU.38
Specifically, the Charter
provides in its preamble that the establishment of the area of freedom, security, and
justice (FSJ) is fundamental for the placement of individuals at the heart of the EU
activities. Judicial cooperation in civil matters is an autonomous part of the FSJ area and
plays an important role in ensuring respect for Charter rights. Moreover, according to
Article 67(4) TFEU, the Union should facilitate access to justice in the field of judicial
cooperation in civil matters. There is a straightforward interdependence between
judicial cooperation in civil matters and access to justice as a fundamental procedural
right in the EU.39
Finally, Article 81(2)(e) TFEU explicitly recognises effective access
to justice as a legitimate objective to be promoted via EU approximation measures.
Attaching Article 47 CFREU to the legal basis of Article 81(2)(e) TFEU could
offer adequate impetus for the creation of a new generation of civil procedural rules,
leading to binding decisions, offering adequate relief to the petitioner, while respecting
the fundamental procedural guarantees of fair trial, timely adjudication, and impartial
36 See, De Schutter (n 35) 19-20. 37 Ibid, 16. 38 See M E Méndez-Pinedo, ‘Access to Justice as Hope in the Dark: in Search for a New Concept in
European Law’ (2011) 1(19) IJHSS 9-10. 39 J Monar, ‘Justice and Home Affairs in the EU Constitutional Treaty. What Added Value for the ‘Area
of Freedom, Security and Justice’?’ (2005) 1 EuConst 226, 231: the reference in the preamble is simply a
good will affirmation and an explicit mandate would have been preferable and more effective.
Zampia G Vernadaki, UCL Laws
49
judgment.40
Since EU institutions have the competence to regulate this policy area of
civil justice cooperation, they should also ensure they protect the right to effective
access to justice, upon which this policy directly encroaches, in a consistent, succinct
way, and at an EU-wide scale.41
Besides, since the primary addressees of the Charter are
the EU institutions, there is a further impetus for action at EU rather than State level
when it comes to the protection of effective access to civil justice in the EU.42
These
considerations should be kept in mind in the subsequent chapters where existing
instances of civil procedure law harmonisation will be examined through the spectrum
of the promotion of the right to effective access to justice, as detailed in the remainder
of this chapter.43
Furthermore, according to Article 52(4) CFREU, the right of access to justice
should be construed in conformity with analogous national provisions accruing from
Member States’ common constitutional traditions.44
If Member States’ constitutional
traditions envisage a more limited level of protection of the right of access to justice, the
potentially wider scope of Article 47 CFREU may be compromised, and its guiding
function for the adoption of EU civil procedure rules may be weakened. However, the
duty of harmonious interpretation does not suggest that the resulting fundamental right
in the EU will be identical to the analogous right established in Member States’
40 On the possibility to promote human rights in the EU based on existing competences see, inter alia: P
Alston and J H H Weiler, ‘An “Ever Closer Union” in Need of a Human Rights Policy: The European
Union and Human Rights’ in Alston (ed), The EU and Human Rights (1999) 3; Maduro, ‘The Double Constitutional Life of the Charter of Fundamental Rights of the European Union’ (n 11) 289; Carozza (n
11) 49. 41 See, Alston and Weiler, ‘An “Ever Closer Union” in Need of a Human Rights Policy: The European
Union and Human Rights’ (n 40) 27. 42 See: Carozza (n 11) 49-50: the Charter could affect Member States’ domestic legislation even in areas
not covered by Union competence. This could happen in cases where national courts adopt a dynamic
interpretation of their national human rights provisions, in accordance with the content and scope of the
Charter Articles; A W Heringa and L Verhey, ‘The EU Charter: Text and Structure’ (2001) 8 MJ 17-20.
See for instance, Commission, ‘Proposal for a Regulation of the European Parliament and of the Council
on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters’ COM
(2010) 748 final. 43 See below, ‘4 Civil procedure law in the EU: the role of the CJEU case law’ 98; ‘5 Sectoral v
Horizontal EU Civil Procedure Law: A Constitutional Conundrum?’ 133. 44 Article 52(4) CFREU: ‘In so far as this Charter recognises fundamental rights as they result from the
constitutional traditions common to the Member States, those rights shall be interpreted in harmony with
those traditions’.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
50
constitutional legal orders. It only ensures that the Union does not adopt a lowest
common denominator approach for rights recognised by both national constitutions and
the Charter. In other words, the aim of harmonious interpretation is to identify common
fundamental rights between the EU and Member States, and taking into account the
varying degree of protection of these rights at domestic levels, to establish a high
standard of fundamental rights’ protection at EU level.45
Finally, it should be underscored that the second paragraph of Article 52
CFREU, providing that Charter rights based on Treaty provisions should be exercised
under the conditions and limits defined in the Treaty, does not create particular
problems either.46
The right to an effective remedy and a fair trial is relevant to Article
81 TFEU, but is not based on that provision. Limitations imposed on, for example, civil
matters with cross-border implications, do not have a direct bearing on the interpretation
and scope of Article 47 CFREU.47
Quite on the contrary, what I advocate in this thesis
is that the limitations of Article 81 TFEU be reviewed with reference to and in
consideration of Article 47 CFREU.48
As a result, these limitations could not
compromise the use of the right to effective access to justice as a guiding tool for EU
action in the area of civil justice cooperation.
2.3 The fundamental procedural guarantees of the right of access to justice: the
standard of protection
45 Explanations Relating To the Charter of Fundamental Rights (n 24), 34; P Craig, The Lisbon Treaty:
Law, Politics, and Treaty Reform (OUP 2010) 234; Tridimas, The General Principles of EU Law (n 6)
366-367. 46 See, J Kenner, ‘Economic and Social Rights in the EU Legal Order: The Mirage of Indivisibility’ in T
Hervey and J Kenner (eds), Economic and Social Rights under the EU Charter of Fundamental Rights. A
Legal Perspective (Hart Publishing 2003) 19. 47 On the interpretation of Article 52 CFREU see inter alia, S Peers, ‘Taking Rights Away? Limitations
and Derogations’ in S Peers and A Ward (eds), The European Union Charter of Fundamental Rights (Hart Publishing 2004) 162-171. 48 See below, ‘6.3.2 Reconsidering the general premises of EU civil justice cooperation’ 199. See also, G
Sanna, ‘Article 47 of the EU Charter of Fundamental Rights and Its Impact on Judicial Cooperation in
Civil and Commercial Matters’ in G di Federico (ed), The EU Charter of Fundamental Rights: From
Declaration to Binding Instrument (Springer 2011) 173-174.
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In the previous section, I argued that the feasibility of a proactive stance by the
EU legislature in the area of Article 47 CFREU is guaranteed due to the existence of
legal competence, explicitly centred on the right of access to justice, namely Article
81(2)(e) TFEU. In this section, I will identify the range of obligations Article 47
CFREU imposes on EU institutions for the future development of EU civil procedure
rules. To that end, I will also examine the CJEU case law on the principle of effective
judicial protection, embodied in Article 47 CFREU, even prior to the enactment of the
2009 Lisbon Treaty.49
In addition, I will look at the Strasbourg case law on Articles 6
and 13 ECHR on the rights to a fair trial and effective remedy respectively. This case
law has interpreted these provisions teleologically, substantiating their wording, and
also establishing further implied positive duties. The Lisbon Treaty explicitly provides
that the European Convention rights constitute general principles of the Union’s law.50
Similarly, Article 52(3) CFREU provides that Charter rights corresponding to ECHR
rights should generally have the same meaning and scope. Article 53 CFREU and the
explanatory memorandum explicitly state that one should take into account the
standards developed in the Strasbourg Court’s case law in order to establish the
minimum level of human rights protection that the corresponding Charter rights should
secure,51
and CJEU traditionally recognises the Strasbourg case law.52
However,
49 See inter alia: case C-40/08 Asturcom Telecomunicaciones SL v Cristina Rodríguez Nogueira [2009] ECR I-09579, para 61; case C-432/05 Unibet (London) Ltd and Unibet (International) Ltd v
Justitiekanslern [2007] ECR I-02271, paras 37-38; case C-12/08 Mono Car Styling SA, in liquidation v
Dervis Odemis and Others [2009] ECR I-06653, para 47; case C-409/06 Winner Wetten GmbH v
Bürgermeisterin der Stadt Bergheim [2010] ECR I-08015, para 58; case C-69/10 Brahim Samba Diouf v
Ministre du Travail, de l’Emploi et de l’Immigration [2011] OJ C 298/6, para 49; joined cases T-439/10
and T-440/10 Fulmen (T-439/10) and Fereydoun Mahmoudian (T-440/10) v Council of the European
Union [2012] OJ C 133/2, para 87. In addition, the official explanations on Article 47 CFREU embrace
this principle via reference to the fundamental CJEU case law that established it in the first place, namely
Johnston, Heylens, and Borelli. See, Explanations Relating To the Charter of Fundamental Rights (n 24). 50 Article 6(3) TEU. 51 Explanations Relating To the Charter of Fundamental Rights (n 24) 33. See also: Draft Charter of Fundamental Rights of the European Union – Text of the explanations relating to the complete text of the
Charter as set out in Charte 4422/00 Convent 45 (Presidency Notes) [2000] Charte 4423/00 CONV 46;
Draft Charter of Fundamental Rights of the European Union – Comments of the Council of Europe
observers on the draft Charter of Fundamental Rights of the European Union (Cover Note) [2000] Charte
4961/00, Contrib 356.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
52
complete streamlining of the EU right of access to justice under Article 47 CFREU with
the relevant ECtHR case law on Articles 6 and 13 ECHR can only be effectively
envisaged after the accession of the European Union to the European Convention.53
This however does not suggest that Article 47 CFREU should be seen as ‘the mere sum
of the provisions of Articles 6 and 13 of the ECHR’.54
Along these lines, individualised complaints mechanisms before the CJEU and
ECtHR are effectively integrated in the proactive collective institutional promotion of
the right of access to justice, serving a prescriptive role and providing the normative
guidelines within which the EU civil justice policy must operate.55
Essentially, this gets
down to two fundamental functions. On the one hand, the relevant CJEU and ECtHR
case law explicates to a certain extent the specific facets of the core elements of civil
justice systems, substantiating the competing interests, namely those of the claimant to
access courts, the defendant for procedural fairness, and the good administration of
[Footnotes continued on next page] 52 See inter alia: case 36-75 Roland Rutili v Minister for the Interior [1975] ECR 1219, para 32. Liselotte
Hauer v Land Rheinland-Pfalz (n 14) para 15; case C-185/95 P. Baustahlgewebe GmbH v Commission of
the European Communities [1998] ECR 8417, para 21. 53 See inter alia: G Di Federico, ‘Fundamental Rights in the EU: Legal Pluralism and Multi-Level
Protection After the Lisbon Treaty’ in G di Federico (ed), The EU Charter of Fundamental Rights from
Declaration to Binding Instrument (Vol 8, Ius Gentium: Comparative Perspectives on Law and Justice,
Springer 2011) 42; ‘Protocol No. 14 to the Convention for the Protection of Human Rights and
Fundamental Freedoms, amending the control system of the Convention’ provides the possibility for the
Union to accede the European Convention in Article 17. For general arguments in favour of the accession
see: F van de Berghe, ‘The EU and Issues of Human Rights Protection: Same Solutions to More Acute
Problems?’ (2010) 16(2) ELJ 112–157; H C Krüger, ‘The European Union Charter of Fundamental Rights and the European Convention on Human Rights: An Overview’ in S Peers and A Ward (eds), The
European Union Charter of Fundamental Rights (Hart Publishing 2004) xxi-xxv; Commission,
‘Community accession to the European Convention for the Protection of Human Rights and Fundamental
Freedoms and some of its Protocols’ (Communication) SEC (90) 2087; European Parliament, ‘Resolution
on the drafting of a European Union Charter of Fundamental Rights’ A5-0064/2000
http://www.europarl.europa.eu/charter/docs/pdf/a5_0064_00_en_en.pdf accessed 17 March 2013. For
arguments against the necessity to accede the ECHR see: F J Jacobs, ‘The European Convention on
Human Rights, The EU Charter of Fundamental Rights and The European Court of Justice: The impact of
European Union accession to the European Convention on Human Rights’
http://www.ecln.net/elements/conferences/book_berlin/jacobs.pdf accessed 12 March 2013; R C A White,
‘The Strasbourg Perspective and its Effect on the Court of Justice: Is Mutual Respect Enough?’ in A Arnull, P Eeckhout, and T Tridimas (eds), Continuity and Change in EU law, Essays in Honour of Sir
Francis Jacobs (OUP 2008) 146-150. 54 Case C-69/10 Brahim Samba Diouf v Ministre du Travail, de l’Emploi et de l’Immigration [2011] OJ C
298/6, Opinion of AG Cruz Villalón, para 39. 55 See, De Búrca, ‘The Constitutional Challenge Of New Governance In The European Union’ (n 20).
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justice for procedural efficiency. On the other hand, it prompts EU institutions to strike
a balance between these competing interests, limiting them in a legitimate and
proportionate fashion. As a result, considerations of effective remedy and fair trial do
not involve a wholesale unification of Member States’ procedural systems. However,
they call for a systematic and holistic evaluation of the various parts of civil procedural
law, allowing the consistent incorporation of effective access to justice notions in the
EU legal order.
2.3.1 Right to an effective remedy before a tribunal
The first paragraph of Article 47 CFREU originates from Article 13 ECHR on
the right to an effective remedy before a national authority.56
However, unlike its ECHR
counterpart, which is limited to Convention rights only, Article 47(1) CFREU requires
that its addressees, primarily EU institutions,57
secure access to justice for everyone
‘whose rights and freedoms guaranteed by the law of the Union58
are violated’,
rendering justiciable a variety of social and economic rights.59
2.3.1.1 The requirement for judicial review
EU institutions should guarantee the right to an effective remedy before a court
and not simply before a national authority.60
As a result, access to executive authorities
56 This was a positive obligation imposed on Contracting States, which was first explicated in: Silver and
Others v. the United Kingdom App no 5947/72, 6205/73, 7052/75, 7061/75, 7107/75, 7113/75, 7136/75
(ECtHR, 25 March 1983), para 113. 57 See, ‘Explanations Relating To the Charter of Fundamental Rights’ (n 24) 32: ‘[…] the Charter applies
primarily to the institutions and bodies of the Union, in compliance with the principle of subsidiarity’. 58 See, Commission, 2010 Report on the Application of the EU Charter of Fundamental Rights
(Publications Office of the European Union 2011) 77 http://fra.europa.eu/fraWebsite/attachments/charter-
applic-report-2010_EN.pdf accessed 20 March 2013: in non- EU law related cases, the right to an
effective remedy is guaranteed by the national authorities, including the courts, according to the national
law. 59 Heringa and Verhey (n 42) 27; Draft Charter of Fundamental Rights of the European Union (n 24) 41;
case 5/88 Hubert Wachauf v Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 2609, para 19;
case 222/84 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 01651;
case 222/86 Union nationale des entraîneurs et cadres techniques professionnels du football (Unectef) v
Georges Heylens and others [1987] ECR 04097; case C-97/91 Oleificio Borelli SpA v Commission of the
European Communities [1992] ECR I-06313; case C-263/02 P Commission of the European Communities v Jégo-Quéré & Cie SA [2004] ECR I-03425, para 29; joined cases T-377/00, T-379/00, T-380/00, T-
260/01 and T-272/01 Philip Morris International, Inc and Others v Commission of the European
Communities [2003] ECR II-1. 60 In the remit of the European Convention, the standard applicable to non-judicial authorities for
remedies to be deemed effective is rather rigorous and often analogous guarantees of independence and
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
54
does not fulfill the obligation to provide an effective remedy in case of violation of
Union law. The tribunal with jurisdiction over the matter should possess judicial
functions, issuing binding decisions.61
In Johnston v Chief Constable,62
the Court
conceived the right to effective judicial review as an indispensable aspect of the
principle of effective judicial protection. According to Article 53(2) of the 1976 Sex
Discrimination Order, giving effect to EU directive 76/207,63
a certificate produced by
the Secretary of State constituted conclusive evidence that an act was done to safeguard
national security, or public safety, or public order.64
This resulted in rendering a
decision by the Chief Constable of the Royal Ulster Constabulary judicially
unreviewable, depriving Mrs Johnston of any remedy and any possibility to assert her
EU rights by judicial process.65
The Court declared the domestic (Northern Irish)
evidential rule of procedure inapplicable, and demanded that effective judicial review is
offered to the litigant. Based on Article 6 of Directive 76/207, the CJEU established a
right to an effective judicial remedy and a subsequent duty on Member States to take
measures that enable individuals to rely effectively on their EU rights before national
courts.66
This reflected a general principle of law, underlying the Member States’
constitutional traditions, also laid down in Articles 6 and 13 ECHR.67
Nevertheless, the right to effective judicial review is not absolute and certain
national limitations can be tolerated. By way of illustration, the Court found in Brahim
Samba Diouf that the non-availability of judicial review of preparatory administrative
[Footnotes continued on next page]
impartiality with those applicable to judicial authorities are envisaged by the Strasbourg Court: Klass and
Others v. Germany App no 5029/71 (ECtHR, 6 September 1978), para 67; E and Other v. the United
Kingdom App no 33218/96 (ECtHR, 26 November 2002), para 112. 61 Under the ECHR regime, this guarantee is only established for the right to a fair trial under Article
6(1): Benthem v. Netherlands App no 8848/80 (ECtHR, 23 October 1985). 62 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary (n 59). 63 Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal
treatment for men and women as regards access to employment, vocational training and promotion, and
working conditions [1976] OJ L 39/40. 64 Sex Discrimination (Northern Ireland) Order 1976, Article 53(1). 65 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary (n 59) para 20. 66 Ibid, para17. See also, case C-50/00 P Unión de Pequeños Agricultores v Council of the European
Union (UPA) [2002] ECR I-06677, para 41. 67 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary (n 59) para18.
Zampia G Vernadaki, UCL Laws
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acts does not violate the substance of this right, provided the final decision, based on the
said preparatory acts, is judicially reviewable.68
Even if these preparatory acts limit the
period available to bring an action before the courts, also limiting the levels of
jurisdiction available to the litigant, the core of the right to an effective remedy before a
tribunal, is not violated, to the extent that access to courts is not impossible in practical
terms.69
Legitimate considerations regarding the necessity for swift procedures in
asylum applications can justify such limitations, which do not disproportionately erode
the essence of the fundamental right to effective remedy.70
Interlinked with the requirement for judicial review is the obligation for national
administrative authorities to provide prospective litigants with reasoned decisions. In
the Heylens case,71
the French authorities refused to recognise a Belgian football
trainer’s diploma, preventing him from practising his profession in France. The CJEU
ruled that the free movement of workers in the EU constitutes a fundamental right in the
EU legal order, and therefore national authorities’ decisions refusing the benefit of that
right to EU nationals, should be subject to judicial scrutiny.72
To this end, the competent
national authorities should provide individuals with specific reasons for their decision,
so that the harmed individual could decide the best possible way to defend his/her EU
fundamental rights.73
For individuals to have a realistic opportunity to contest
administrative decisions affecting their EU rights,74
they should be aware of the main
lines of reasoning and argumentation in the administrative decision, in order to
68 Brahim Samba Diouf v Ministre du Travail, de l’Emploi et de l’Immigration (n 49) paras 37-45. 69 Ibid, Opinion of AG Cruz Villalón, para 63. 70 Ibid, paras 53-54. 71 Union nationale des entraîneurs et cadres techniques professionnels du football (Unectef) v Georges
Heylens and others (n 59). 72 Ibid, para 14. 73 Ibid, para 15; case T-49/07 Sofiane Fahas v Council of the European Union [2010] ECR II-05555, para
60; case C-75/08 The Queen, on the application of Christopher Mellor v Secretary of State for
Communities and Local Government [2009] ECR I-03799, para 59. 74 See also, case C-70/95 Sodemare SA, Anni Azzurri Holding SpA and Anni Azzurri Rezzato Srl v
Regione Lombardia [1997] ECR I-3395.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
56
challenge it appropriately in terms of points of law and/or fact before the competent
national courts.75
2.3.1.2 The obligation to provide an ‘effective’ remedy
The first paragraph of Article 47 CFREU also requires that EU institutions
provide remedies capable of offering practical and adequate relief where EU law has
been violated. The test applied is rather rigorous, looking at both the procedural
characteristics of the remedies and the overall opportunity for relief they offer, also
looking at the administrative and judicial system of each Member State as a whole.76
Von Colson77
opened up the way for the recognition of the requirement for practically
and adequately effective remedies. In this case, the German authorities had chosen the
remedy of compensation in cases of violations of Council Directive 76/207 on the
equal treatment of men and women as regards access to employment, vocational
training and promotion and working conditions. Specifically, national sanctions
consisted of the award of compensation only for the travel expenses incurred by the
plaintiff in pursuing her application for a post where access to employment conditions
breached the above Directive. However, these procedural rules lacked any deterrent
effect by guaranteeing the compensation of purely nominal amounts of damages, thus
not being capable of securing adequate relief for the damages actually incurred by the
plaintiff.78
Although a single remedy may not suffice for adequate relief, a combination of
different remedies under domestic law may do so. For example, where a national
remedy for nullity or reinstatement violates the principle of effective judicial protection,
75 See also: joined cases C-372/09 and C-373/09 Josep Peñarroja Fa [2011] ECR I-01785, paras 62-64;
case C-186/04 Pierre Housieaux v Délégués du conseil de la Région de Bruxelles-Capitale [2005] ECR I-
03299, para 36.In the ECtHR context, Chevrol v. France App no 49636/99 (ECtHR, 13 May 2003), para
82. 76 Brahim Samba Diouf v Ministre du Travail, de l’Emploi et de l’Immigration (n 49) para 46. See also in
the context of the Strasbourg case law: Chahal v. the United Kingdom App no 22414/93 (ECtHR, 15
November 1996), paras 150-151; Smith and Grady v. the United Kingdom App no 33985/96 and 33986/96 (ECtHR, 27 September 1999); Conka v. Belgium App no 51564/99 (ECtHR, 5 February 2002);
Iatridis v. Greece App no 31107/96 (ECtHR, 25 March 1999). 77 Case 14/83 Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen [1984] ECR 1891,
para 23. 78 Ibid, para 28.
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imposing unreasonably short limitation periods, an alternative remedy to damages
should be available to make good the loss inflicted.79
Moreover, in the Unibet case, the
Court suggested that interim relief constitutes a necessary corollary of effective judicial
protection.80
Interim relief should be available in all cases where the admissibility of an
action to protect EU rights is either certain, or uncertain, or despite being inadmissible,
EU law raises doubts as to its inadmissibility. This positive requirement stems from the
necessity for the right to effective remedy to have a practical value through the
provision of a binding final judgment.81
Along these lines, Advocate General Kokott
inferred a right to injunctive relief from Articles 47 CFREU and 19 TEU in her opinion
in the ongoing Krizan case.82
The Advocate General also openly associated the right to
effective interim relief with the right of access to justice as established in Article 9(4) of
the Aarhus Convention, constituting part of the EU law.83
2.3.2 Right to a Fair Trial
The second and third paragraphs of Article 47 CFREU originate in Article 6(1)
ECHR, setting the fundamental procedural aspects of the right of access to justice in
civil and criminal proceedings. However, the scope of Article 47 CFREU is broader
than that of the relevant ECHR provision, in that the procedural guarantees of access to
justice are not limited to disputes relating to civil rights and obligations or criminal
charges.84
This corresponds to the communitarian nature of the EU legal order, which
79 Case C-63/08 Virginie Pontin v T-Comalux SA [2009] ECR I-10467, para 76. 80 Unibet (London) Ltd and Unibet (International) Ltd v Justitiekanslern (n 49) paras 37 and 72. 81 First established in the ECtHR case law, H v. France App no 10073/82 (ECtHR, 24 October 1989),
para 58 (the principle of effectiveness). 82 Case C-416/10 Jozef Križan and Others v Slovenská inšpekcia životného prostrediai [2013] OJ C63/2,
Opinion of AG Kokott, paras 172-173. 83 Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European
Community, of the Convention on access to information, public participation in decision-making and
access to justice in environmental matters [2005] OJ L124/1. 84 On the meaning of ‘civil’ rights in the ECHR context see, Deumeland v. Germany App no 9384/81
(ECtHR, 29 May 1986), paras 59-74. On the broader scope of Article 47 CFREU see, EU Network of
Independent Experts on Fundamental Rights, ‘Commentary of the Charter of Fundamental Rights of The European Union’ (2006)
http://ec.europa.eu/justice/doc_centre/rights/charter/docs/network_commentary_final%20_180706.pdf
accessed 23 March 2013. The procedural guarantees of Article 47 (2) CFREU are also applicable to
arbitration bodies, case C-63/01 Samuel Sidney Evans v The Secretary of State for the Environment,
Transport and the Regions. And Motors Insurers' Bureau [2003] ECR I-14447. The same holds true for
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
58
complies with the rule of law, and which views access to justice as one of the
constitutive elements of the EU supranational structure.85
It also constitutes a further
indication of the higher level of protection of the right to an effective remedy and a fair
trial, compared to the relevant guarantees under Articles 6 and 13 ECHR.86
2.3.2.1 The requirement for access to the courts
The Strasbourg court first established that an individual must be able to bring a
claim before a court of law for the determination of the ECHR rights or obligations,
without facing any inappropriate legal and practical impediments. However, this
requirement is not absolute and can be limited, provided the limitation pursues a
legitimate aim and is proportional in the means it employs to achieve this aim.87
With
this in mind, the CJEU found in Alassini that national rules imposing the mandatory
out-of-court settlement of disputes between end-users and providers of electronic
communications services prior to the initiation of court proceedings did not necessarily
[Footnotes continued on next page]
actions against the Union institutions: joined cases 100/80 to 103/80 Musique Diffusion Francaise and
Others v Commission of the European Communities [1983] ECR 1825; case C-315/99 P Ismeri Europea
v Court of Auditors of the European Communities [2001] ECR I-5281, para 28; case C-135/92 Fiskano v
Commission of the European Communities [1994] ECR I-2885; case C-142/87 Kingdom of Belgium v
Commission of the European Communities [1990] ECR I-959; case C-78/01 Bundesverband
Güterkraftverkehr und Logistik eV (BGL) v Bundesrepublik Deutschland [2003] ECR I-9543. 85 Case 294/83 Parti écologiste "Les Verts" v European Parliament [1986] ECR 01339, para 23; Philip Morris International, Inc and Others v Commission of the European Communities (n 59) paras 120-122. 86 A Ward, ‘Access to Justice’ in S Peers and A Ward (eds), The European Union Charter of
Fundamental Rights (Hart Publishing 2004) 140. However, it should be underscored that more and more
judges in Strasbourg share the opinion that even if the disputed matter falls within hardcore prerogatives
of public authorities, the application of the procedural guarantees of Article 6 ECHR, will do no harm;
neither change that public law character: Ferrazzini v. Italy App no 44759/98 (ECtHR, 12 July 2001),
para 8, dissenting opinion of Mr Lorenzen joined by Mr Rozakis. See also, the joint concurring opinion of
Judges Tulkens, Maruste, and Fura-Sandström in case Martinie v. France App no 58675/00 (ECtHR, 12
April 2006): ‘For our part, we think that the raison d’être and justifications for the exclusion of certain
categories of public servants from the guarantees of a fair trial should now be fundamentally reviewed in
the light of Article 47 of the Charter of Fundamental Rights of the European Union […]’. 87 Ashingdane v. United Kingdom App no 8225/78 (ECtHR, 28 May 1985), paras 111-113. Such
legitimate exceptions have been established based on the nature of the litigant, namely a minor, a
bankrupt, a person of unsound mind, and vexatious litigants: M v. the United Kingdom (1987) 52 DR 269;
X. and Y. v. Netherlands App no 8978/80 (ECtHR, 26 March 1985); H. v. United Kingdom App no
9580/81 (ECtHR, 8 July 1987).
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violate the right of access to courts.88
Extra-judicial procedures are justifiable based on
the interests of the good administration of justice, alleviating some of the burden of the
court system. They are equally beneficial to the parties of the dispute providing an
alternative means of dispute resolution, swifter and less costly, compared to judicial
proceedings.89
However, out-of-court settlement processes should not be binding on
prospective litigants, in order to offer them the possibility of transferring their dispute to
the judicial avenue. Additionally, out-of-court settlement should not substantially
prolong the resolution of the dispute, nor inflict substantial costs on the litigant. On the
contrary, it should allow for the suspension of the period for the time barring of claims,
being available to litigants via both electronic and non-electronic means, also taking
into account the possibility for temporary protection in urgent cases.90
Unless these
qualifications are respected, the essence of the right to a court would be severely
undermined, resulting in a negation of any possibility to judicially enforce one’s EU law
rights.91
Additionally, the Court found in Pontin that national limitation periods could
also affect the right of access to courts. Although such rules can be justified based on
the necessity for legal certainty, good administration of justice, and protection of the
interests of the defence, they should not be prohibitively short, rendering access to
courts impossible in practical terms.92
The following parameters are of particular
relevance: the significance of the decisions for the parties concerned; the complexities
88 Joined cases C-317/08, C-318/08, C-319/08 and C-320/08 Rosalba Alassini v Telecom Italia SpA (C-
317/08), Filomena Califano v Wind SpA (C-318/08), Lucia Anna Giorgia Iacono v Telecom Italia SpA
(C-319/08) and Multiservice Srl v Telecom Italia SpA (C-320/08) [2010] ECR I-02213. 89 Ibid, paras 63-64. 90 Ibid, paras 54-58. 91 Ibid, para 65. 92 Virginie Pontin v T-Comalux SA (n 79) para 60. In the context of the ECtHR case law, see: Brumărescu
v. Romania App no 28342/95 (ECtHR, 28 October 1999) para 61; Bujnita v. Moldova App no 36492/02
(ECtHR, 16 January 2007), para 23; Ryabykh v. Russia App no 52854/99 (ECtHR, 24 July 2003), paras 51-52. See also, H J Hellwig, ‘Is it really possible to render fair justice faster?’ (Conference jointly
organised by the European Commission and the Council of Europe: ‘Towards an ideal trial: A few
examples of the most successful judicial civil proceedings in Europe’, Brussels, November 18-20, 2004)
4-6 http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/speech_hellwig_182011_1184147495.pdf
accessed 13 March 2013.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
60
of the procedures and of the applicable legislation; and, the number of persons who may
be affected.93
As a result, rules on the separation of claims and submission under
different courts and procedures in case of claims falling under the same head of action
should be scrutinised against the necessity for timely and practical adjudication of EU
law rights and obligations. If national procedural rules lead to further procedural
complications, perplexing adjudication, increasing its length and costs involved, they
must be set aside, and initial jurisdiction for one of the claims must be expanded to all
claims.94
In addition, in Mono Car Styling the Court found that a national rule imposing
several preparatory steps for an individual to initiate courts proceedings did not limit
disproportionately the right of access to courts. In establishing this finding, it looked at
the collective character of the EU right of information and consultation in case of
collective redundancies; this right has serious repercussions for the future employment
of many people. Therefore, the additional possibility for individual judicial action
against an employer that has violated his obligations to inform and consult workers in
collective redundancies can legitimately be limited via imposition of certain preparatory
steps. Such a limitation cannot be regarded as disproportionate to the collective interests
pursued, since it does not erode the essence of the right to court.95
Finally, the Strasbourg case law on Article 6 ECHR has also established that the
requirement not to impede access to courts would have no practical value, if not
accompanied by a positive obligation on States to enforce final and binding judicial
decisions within a reasonable time. However, the execution of a judgement may be
delayed for some time,96
especially where execution requires the participation of the
93 Case C-349/07 Sopropé - Organizações de Calçado Lda v Fazenda Pública [2008] ECR I-10369, para
40. 94 Case C-268/06 Impact v Minister for Agriculture and Food and Others [2008] ECR I-02483, paras 51-
53. See inter alia, Zuckerman, ‘The principle of effective judicial protection in EU law’ (n 2). 95 Mono Car Styling SA, in liquidation v Dervis Odemis and Others (n 49) paras 46-52. 96 Burdov v. Russia App no 59498/00 (ECtHR, 7 May 2002), para 34; Kyrtatos v. Greece App no
41666/98 (ECtHR, 22 May 2003), para 32: 7 years for the adoption of necessary measures for the
execution of a final court judgment was disproportionate and violated Article 6(1) ECHR; Jasiūnienė v.
Lithuania App no 41510/98 (ECtHR, 6 June 2003): failure to execute a court judgment after more than 8
years.
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applicant, who nonetheless remains inactive.97
More importantly, this execution cannot
be canceled due to lack of essential State funds in case of a dispute with a state
authority.98
However, in horizontal relations, namely between private individual parties,
the lack of funds may justify the failure to enforce a judgment.99
Overall, the criteria for
the timely enforcement of judgments are more relaxed compared to those applicable for
the reasonable length of judicial proceedings.100
Still, certain considerations regarding
the complexity of the case and the parties’ conduct are relevant on both occasions.101
2.3.2.2 The obligation for a fair hearing
The right to a fair hearing consists of several fundamental procedural guarantees
for the due process of the law. These guarantees are not immediately evident in the text
of Article 47 CFREU, and have mainly been construed judicially through the extensive
case law of the CJEU and ECtHR. They involve the right to equality of arms and to
adversarial proceedings.102
Nevertheless, there is only a broad requirement for
adversarial processes and adversarial and inquisitorial legal systems can usually comply
with this guarantee of fair trial in Article 47 CFREU.103
The notion of a fair hearing includes the notion that parties to judicial
proceedings have knowledge of and comment on all evidence produced or observations
submitted by the other party.104
This principle of adversarial proceedings reinforces the
97 Užkurėlienė and others and others v. Lithuania App no 62988/00 (ECtHR, 7 April 2005), paras 35-36. 98 Burdov v. Russia (n 96) paras 34-38. 99 Fuklev v. Ukraine App no 71186/01 (ECtHR, 7 June 2005), paras 84-86. 100 See below, ‘2.3.2.4 The ‘reasonable time’ requirement’ 64. 101 By analogy from ECtHR case law, Užkurėlienė and others and others v Lithuania (n 97) paras 31-37. 102 See: joined cases C-439/05 P and C-454/05 P Land Oberösterreich and Republic of Austria v
Commission of the European Communities [2007] ECR I-07141, para 36; case C-287/02 Kingdom of
Spain v Commission of the European Communities [2005] ECR I-5093, para 37; case C-199/99 P Corus
UK Ltd v Commission of the European Communities [2003] ECR I-11177, paras 19-25, 41-43, 50-59. 103 By analogy from the ECHR regime see, D Vitkauskas and G Dikov, ‘Protecting the right to a fair trial
under the European Convention on Human Rights’ (Council of Europe human rights handbooks, Council
of Europe Strasbourg 2012) 45
http://www.coe.int/t/dghl/cooperation/capacitybuilding/Source/documentation/hb12_fairtrial_en.pdf 13 March 2013. 104 Although the Commission is not a court, CJEU judgments on the principles of adversariality and
equality of arms in proceedings before the Commission are relevant: joined cases 209 to 215 and 218/78
Heintz van Landewyck SARL and others v Commission of the European Communities [1980] ECR 03125;
Musique Diffusion Francaise and Others v Commission (n 84). In the context of the ECHR regime see,
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appearance of the fair administration of justice.105
Accordingly, only access to materials
of fundamental importance should be granted, whereas restrictions to less significant
materials can be accepted.106
Member States are free to set rules on the admissibility of
evidence and domestic courts are free to assess this evidence.107
However, in order to
confirm the fair character of the proceedings as a whole, one must have regard to the
nature of the evidence admitted and the way in which it was taken are relevant under
Article 47. Finally, the defendant’s participation in proceedings can exceptionally be
excluded as a whole (debarment order), for fear of delaying tactics, where he has been
ordered to disclose certain information (disclosure order) and he has failed to do so
within the provided timeframe (unless order). To that end, the defendant should have
been vested with a reasonable opportunity, both in terms of time and place, to express
his opinion before the issuance of the orders, after the examination of the merits of the
claim, and provided he also has the possibility to challenge these orders, based on the
need to protect certain professional secrets.108
Closely related to the right to adversarial proceedings is the parties’ right to
equality of arms. In rough lines, the equality of arms demands that all parties to judicial
proceedings have a reasonable chance to present their case to the court under conditions
that do not disadvantage them substantially vis-à-vis their opponents, thereby
attempting to strike a fair balance between the parties.109
As a result, if none of the
parties gets access to evidence adduced by the Court on its own initiative, no violation
of the principle of equality of arms can viably be established. However, this constitutes
[Footnotes continued on next page]
Ruiz-Mateos v. Spain App no 12952/87 (ECtHR, 23 June 1993), para 63, where the applicants’ request to
make submissions before the Constitutional Court was denied. 105 See, Ismeri Europea v Court of Auditors (n 84) para 28. In the context of ECtHR case law, Borgers v.
Belgium App no 12005/86 (ECtHR, 30 October 1991), para 24. 106 By analogy from ECtHR, McMichael v. the United Kingdom App no 16424/90 (ECtHR, 24 February
1995), paras 78-82: denial of access to social reports deemed “vital” in the context of child-care
proceedings and examined by the courts. 107 Fiskano v Commission (n 84); Belgium v Commission (n 84); BGL v Bundesrepublik Deutschland (n 84). In the ECHR context, Schenk v. Switzerland App no 10862/84 (ECtHR, 12 July 1988). 108 Case C-394/07 Marco Gambazzi v DaimlerChrysler Canada Inc. and CIBC Mellon Trust Company
[2009] ECR I-2563, paras 41-46. 109 By analogy from ECtHR, Brandstetter v. Austria App no 11170/84, 12876/87, 13468/87 (ECtHR, 28
August 1991).
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a violation of the right to adversarial proceedings and the requirement to get knowledge
of and comment on all evidence collected.110
Similarly, parties should have the
opportunity to cross-examine witnesses,111
to reply to written submissions to the
national court made by the counsel for the State,112
and to call a witness.113
2.3.2.3 The requirement for a public hearing
The requirement for a public hearing constitutes a distinct guarantee directly
inferred from the wording of Article 47 CFREU. Nonetheless, this provision has mainly
been elaborated in the context of the Strasbourg case law on Article 6(1) ECHR and the
more general reference to the fairness of proceedings.114
Specifically, ECtHR has found
that the guarantee for a public hearing encompasses the demand for the proceedings to
include oral submissions115
and the presence of all parties, and of the public/media
wishing to follow the case. As a result, litigants vest confidence in the judicial system
and the fair administration of justice.116
In order to secure public scrutiny, judgments
must be pronounced publicly, either reading them out in the court, or depositing them in
the court registry enabling the public to review the rationale and principles behind
them.117
Consequently, it is not sufficient that the domestic court reads out only the
operative part of the decision during a public hearing, sending a full written copy of a
judgment exclusively to the parties, without the public having access to the archives of
the court registry.118
110 See, case C-338/00 P Volkswagen AG v Commission of the European Communities [2003] ECR I-9189, para 109. In the context of the ECHR regime, Krčmář and Others v. the Czech Republic App no
35376/97 (ECtHR, 3 March 2000). 111 By analogy from ECtHR, X v. Austria (1972) 42 EHRR CD 145. 112 By analogy from ECtHR, Ruiz-Mateos v. Spain (n 104). 113 By analogy from ECtHR, Dombo Beheer B.V. v. The Netherlands App no 14448/88 (ECtHR, 27
October 1993): only one of the parties was offered the opportunity to call a witness, the other party being
denied such a chance because the court mistakenly identified the witness with the applicant party. 114 Ekbatani v. Sweden App no 10563/83 (ECtHR, 26 May 1988). 115 Fredin v. Sweden (no 2) App no 18928/91 (ECtHR, 23 February 1994), para 21. 116 Axen v. Germany App no 8273/78 (ECtHR, 8 December 1983), para 25; Stallinger and Kuso v. Austria
App no 14696/89, 14697/89 (ECtHR, 23 April 1997), para 51; Diennet v. France App no 18160/91 (ECtHR, 26 September 1995), para 34. 117 Pretto and others v. Italy App no 7984/77 (ECtHR, 8 December 1983), para 26; Werner v. Austria
App no 21835/93 (ECtHR, 24 November 1997); Szucs v. Austria App no 20602/92 (ECtHR, 24
November 1997). 118 Ryabykh v. Russia (n 92).
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The right to a public hearing is not absolute and on many occasions can be
limited or even waived.119
Specifically, parties’ presence in civil proceedings is not
always necessary,120
and proceedings do not always have to be oral. Also, there are
many exceptions to the public accessing and following the case and the judgment
delivered either inside the courtroom, via the mass media, or the court’s registry.121
For
instance, there is no necessity for a public hearing for the granting of an invalidity
pension, due to the technical character of the disputed issue.122
Overall, the public and
the media may be fully or partially excluded from a trial in the interests of morals,
public order or national security in a democratic society, juveniles or the parties’ private
life, or in the interests of justice in special circumstances.123
2.3.2.4 The ‘reasonable time’ requirement
A fair trial should according to Article 47 CFREU have a reasonable length.124
The underlying rationale, especially in civil proceedings, is that delayed judgments can
compromise the effectiveness and the credibility of the entire judicial system in
resolving disputes and enforcing private rights and obligations.125
This relates to the
requirement for legal certainty and the necessity to end a situation of prolonged
insecurity with respect to a person’s civil law position. This is to the interest of all
119 Håkansson and Sturesson v. Sweden App no 11855/85 (ECtHR, 21 February 1990), para 66. 120 Shtukaturov v. Russia App no 44009/05 (ECtHR, 27 June 2008), paras 69-76; Kremzow v. Austria App
no 12350/86 (ECtHR, 21 September 1993). 121 B and P v. the United Kingdom App no 36337/97, 35974/97 (ECtHR, 24 April 2001), paras 36, 39:
this was an application for residency orders in respect of children. The 1998 Children Act’s presumption
that such proceedings should be conducted in private was not found to violate the right to public hearing because it can be seen as a specific reflection of the general exceptions in Article 6(1) ECHR. Fischer v.
Austria App no 16922/90 (ECtHR, 26 April 1995), para 44; Koottummel v. Austria App no 49616/06
(ECtHR, 10 March 2010), paras 18-21. 122 Schuler-Zgraggen v. Switzerland App no 14518/89 (ECtHR, 24 June 1993), para 58. 123 Article 6(1) ECHR. 124 For and in-depth empirical analysis of the requirements for reasonable duration of proceedings, the
Strasbourg case law and the reasons for judicial delays in the various Contracting States see, F Calvez,
Length of court proceedings in the member states of the Council of Europe based on the case law of the
European Court of Human Rights (Report adopted by the CEPEJ at its 8th plenary meeting, Council of
Europe Publishing 2007) http://www.coe.int/t/dghl/cooperation/cepej/delais/Calvez_en.pdf accessed 19
March 2013. 125 See: Baustahlgewebe GmbH v Commission (n 52) paras 26-47; joined cases C-238/99 P, C-244/99 P,
C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P Limburgse Vinyl Maatschappij NV
(LVM) and Others v Commission of the European Communities [2002] ECR I-08375, paras 164-235; case
C-194/99 P Thyssen Stahl AG v Commission of the European Communities [2003] ECR I-10821, paras
154-156.
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parties to civil proceedings, as well of the judicial system as a whole. Accordingly, in
Belvedere Costruzioni Srl., national procedural rules provided for the automatic
conclusion of proceedings pending before the tax court of third instance. The CJEU
examining this provision, using Article 47 CFREU, found that VAT related EU law
obligations could not result in unreasonably long adjudications of tax disputes in this
area, lasting for more than 10 or 14 years, when the tax authorities had been
unsuccessful at first and second instance.126
CJEU has found that the criteria to consider the reasonableness of the duration
of court proceedings include: the complexity of the case; the applicant’s conduct; the
conduct of the State’s judicial authorities; and, the importance of the case for the
applicant.127
These criteria are not exhaustive and the justification of the length of the
proceedings in the light of one of them does not necessitate the exhaustion of the
remaining parameters.128
The Strasbourg case law has further elaborated these
parameters. To begin with, the complexity of the case flows from both its factual
circumstances and the legal issues it raises.129
For instance, a case can be deemed
complex when it is capable of having wide-ranging repercussions for the domestic case
law of a Member State.130
Other parameters to be considered are the number of accused
people,131
the number of witnesses, the need for evidence on commission,132
and the
complexities in the investigation stage.133
Even particularly complex cases can have an
unreasonable duration all circumstances considered.134
126 Case C-500/10 Ufficio IVA di Piacenza v Belvedere Costruzioni Srl [2012] OJ C 151/6, paras 23-28. 127 See, case C-403/04 P Sumitomo Metal Industries Ltd (C-403/04 P) and Nippon Steel Corp. (C-405/04
P) v Commission of the European Communities [2007] ECR I-00729, paras 115-123. By analogy from
ECtHR case law: König v. Germany App no 6232/73 (ECtHR, 28 June 1978), para 99; Buchholz v. the
Federal Republic of Germany App no 7759/77 (ECtHR, 6 May 1981), para 49. 128 See: Limburgse Vinyl Maatschappij and Others v Commission (n 125) para 188; Thyssen Stahl v
Commission (n 125) para 156. 129 Triggiani v. Italy App no 13509/88 (ECtHR, 19 February 1991), para 17. 130 Katte Klitsche de la Grange v. Italy App no 12539/86 (ECtHR, 27 October 1994), para 62. 131 Angelucci v. Italy App no 12666/87 (ECtHR, 19 February 1991), para 15. 132 Andreucci v. Italy App no 12955/87 (ECtHR, 27 February 1992), para 17. 133 Manzoni v. Italy App no 11804/85 (ECtHR, 19 February 1991), para 18. 134 Ferrantelli and Santangelo v. Italy App no 19874/92 (ECtHR, 7 August 1996), paras 38-42.
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Next, the applicant’s conduct is important because if he deliberately does not
show diligence in undertaking the procedural actions relevant to him, if he employs
delaying tactics,135
or if he does not take advantage of possibilities offered by the
domestic legal order for shorter proceedings,136
he obviously cannot complain for the
violation of his right to a hearing within a reasonable time. Making full use of all
defence procedures, however, does not constitute a delaying tactic,137
and there is no
responsibility on the applicant’s part to contribute to the expeditious conclusion of
proceedings.138
Also, judicial authorities’ conduct needs to be investigated mainly
against the principle of the proper administration of justice and the courts’ duty to deal
appropriately with the cases before them,139
taking adequate measures in order to avoid
unnecessary delays.140
Decisions for adjournment or for taking evidence and for the
joining of more cases may offer significant indications.141
Likewise, the repeated re-
opening or remittance of a case from one court to another (the so-called yo-yo practice)
is often considered as a serious aggravating circumstance, even if the overall duration of
the proceedings does not appear excessive.142
Overall, civil cases may call for
135 Beaumartin v. France App no 15287/89 (ECtHR, 24 November 1994), para 33: despite applicants’
deliberate delaying tactics, the Strasbourg court found a violation of the right to a hearing within a
reasonable time because the first hearing in the domestic court took place only 5 years after the institution
of proceedings. 136 Unión Alimentaria Sanders SA v. Spain App no 11681/85 (ECtHR, 7 July 1989), para 35. 137 Kolomiyets v. Russia App no76835/01 (ECtHR, 22 February 2007), paras 25-31. 138 Eckle v. the Federal Republic of Germany App no 8130/78 (ECtHR, 15 July1982), para 82; Ceteroni
v. Italy App no 22461/93, 22465/93 (ECtHR, 15 November 1996), para 24. 139 See, case C-523/04 Commission of the European Communities v Kingdom of The Netherlands [2007]
ECR I-3267, Opinion of AG Mengozzi, paras 57-60. In the context of ECtHR case law, Boddaert v.
Belgium App no 12919/87 (ECtHR, 12 October 1992), para 39. 140 By analogy from ECtHR: Vernillo v. France App no 11889/85 (ECtHR, 20 February 1991), para 38;
Zimmerman and Steiner v. Switzerland App no 8737/79 (ECtHR, 13 July 1983), para 29; Bottazzi v. Italy
App no 34884/97 (ECtHR, 28 July 1999), para 22: the court found that Italian courts systematically
violate the reasonable duration of proceedings, so that the accumulation of breaches constitutes a
‘practice’ incompatible with the Convention. Additionally, no reference to practical or financial problems
can justify a structural problem with excessive length of proceedings: Salesi v. Italy App no 13023/87
(ECtHR, 26 February 1993), paras 20-25. 141 See, Impact v Minister for Agriculture and Food and Others (n 94) paras 47-53. In the ECHR context: Ewing v. the United Kingdom (1989) 56 DR 71; Zimmerman and Steiner v. Switzerland (n 140); Guincho
v. Portugal App no 8990/80 (ECtHR, 10 July 1984); Buchholz v. Germany (n 127). 142 By analogy from the ECtHR, Svetlana Orlova v. Russia App no 4487/04 (ECtHR, 30 October 2009),
paras 42-52. See also, case C-224/01 Gerhard Köbler v Republik Österreich [2003] ECR I- 10239, para
45: lack of court competence.
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expeditious proceedings where they are of particular importance to the applicant in
terms of their special quality or irreversibility,143
such as in child care cases,144
employment disputes,145
and personal injury cases.146
2.3.2.5 The requirement for an ‘independent and impartial tribunal established by law’
An important corollary to a public and fair hearing within reasonable time is that
this takes place before an independent and impartial tribunal established by law.147
The
requirements for independence, impartiality, and establishment of courts by law, are
distinct, although closely related, and often considered together with no particular
differentiation. To begin with, this provision requires that EU institutions set up various
disciplinary or administrative disputes handling bodies that bear the characteristics of a
“tribunal” – even if they are not so called officially – being permanent, with compulsory
jurisdiction, having an inter partes procedure and applying rules of law.148
The rationale
behind this provision is that the judging authorities are regulated by law originating
directly from the legislature, and are independent from the discretion of the executive.149
In setting up independent courts and tribunals, EU institutions should consider the
following parameters: their members’ appointment procedures;150
the duration of their
143 By analogy from the ECtHR, H v. the United Kingdom (n 87) para 85. 144 By analogy from the ECtHR, Hokkanen v. Finland App no 19823/92 (ECtHR, 23 September 1994), para 72: custody case. 145 By analogy from the ECtHR, Obermeier v. Austria App no 11761/85 (ECtHR, 28 June 1990), para 72:
suspension from work case. 146 By analogy from the ECtHR, Silva Pontes v. Portugal App no 14940/89 (ECtHR, 23 March 1994),
para 39: compensation for serious injuries in accident case. 147 Case C-506/04 Graham J. Wilson v Ordre des avocats du barreau de Luxembourg [2006] ECR I-
08613, paras 47-53; case T-351/03 Schneider Electric SA v Commission of the European Communities
[2007] ECR II-2237, para 181. 148 See: case 61-65 G. Vaassen-Göbbels (a widow) v Management of the Beambtenfonds voor het
Mijnbedrijf [1966] ECR 261; case C-54/96 Dorsch Consult Ingenieurgesellschaft mbH v
Bundesbaugesellschaft Berlin mbH [1997] ECR I-4961, para 23. By analogy from ECtHR case law, H v.
Belgium App no 8950/80 (ECtHR, 30 November 1987), paras 50-55. 149 See: case C-24/92 Pierre Corbiau v Administration des contributions [1993] ECR I-1277, para 15;
case C-516/99 Walter Schmid [2002] ECR I-4573, para 36. By analogy from ECtHR case law: Zand v.
Austria (1978) 15 DR 70; Lavents v. Latvia App no 58442/00 (ECtHR, 28 November 2002). 150 See: joined cases C‑9/97 and C‑118/97 Raija-Liisa Jokela and Laura Pitkärant [1998] ECR I-6267,
para 20. In the ECHR context: Campbell and Fell v. the United Kingdom App no 7819/77; 7878/77
(ECtHR, 28 June 1984), para 79; Zand v. Austria (n 149) para 77.
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professional duties;151
any guarantees against external pressure;152
and, whether the
bodies appear as independent to the public.
Also, according to ECtHR case law, impartiality of the judging court entails the
absence of prejudiced or biased decisions. This can be ascertained via the application of
two cumulative tests;153
the subjective test,154
namely the personal prejudice or actual
bias of a judge, and the objective test,155
investigating whether there are sufficient
guarantees to dilute any legitimate doubts as to the judge’s impartiality. The subjective
approach needs proof of bias and rightly appointed judges are deemed impartial until
otherwise proved.156
To illustrate, a judge’s comments to the press before the
conclusion of the trial, pre-empting the court’s decision towards conviction or partial
acquittal, and omitting any reference to the chance for total acquittal could constitute an
indication of such personal bias.157
The objective test establishes a less onerous burden of proof for the applicant; an
appearance of bias or a legitimate doubt as to the lack of bias is sufficient from the point
of view of an ordinary reasonable observer.158
For instance, a judge may be deemed
partial in cases where her husband has personal interests in the adjudicated matter.159
However, the mere rehearing where a first instance decision is quashed on appeal and
sent back to the first instance judges to reconsider it does not raise any concerns in
terms of judges’ objective impartiality.160
This double test of impartiality should be
applied to juries and lay judges who sit with professional judges for the determination
151 See: Raija-Liisa Jokela and Laura Pitkärant (n 150) para 20: removal from office. 152 See: case C-103/97 Josef Köllensperger GmbH & Co. KG and Atzwanger AG v Gemeindeverband
Bezirkskrankenhaus Schwaz [1999] ECR I-551, para 21; case C-407/98 Katarina Abrahamsson and Leif
Anderson v Elisabet Fogelqvist [2000] ECR I-5539, para 36. 153 Piersack v. Belgium App. no 8692/79 (ECtHR, 1 October 1982), para 30. 154 Hauschildt v. Denmark App no 10486/83 (ECtHR, 24 May 1989). 155 Piersack v. Belgium (n 153). 156 Hauschildt v. Denmark (n 154) para 47. 157 Lavents v. Latvia (n 149). 158 Piersack v. Belgium (n 153). 159 Sigurdsson v. Iceland App no 39731/98 (ECtHR, 10 July 2003), paras 37-46. 160 Thomann v. Switzerland App no 17602/91 (ECtHR, 10 June 1996), para 35.
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of civil or criminal proceedings,161
as well as to specialist courts and practitioners in the
specialist field appointed as members of the tribunal.162
2.3.2.6 The obligation to provide legal aid
The third paragraph of Article 47 explicitly recognises a right to legal aid to
ensure effective access to justice. This right is a corollary of the right to a fair trial and,
though not mentioned explicitly in the text of Article 6(1) ECHR, it is traditionally
recognised by the relevant Strasbourg case law, in cases where according to domestic
law representation by a legal professional is mandatory, or in complex or of special
nature cases (implied positive obligations).163
Accordingly, neither the occasional
assistance by volunteer lawyers, or the extensive judicial assistance and latitude granted
to the applicants as litigants in person, could substitute a competent and sustained
representation by an experienced lawyer deemed necessary due to the complexity of the
case.164
More recently, CJEU also explicitly recognised the possibility for legal aid not
only in cases where lawyer assistance is needed, but also in cases where dispensation
from advance payment of court fees is necessary for effective judicial protection under
Article 47 CFREU.165
In the DEB case, the Court confirmed that commercial
companies, under certain circumstances, could be entitled to legal aid to secure access
to justice.166
In other words, Article 47 CFREU secures access to courts and thus legal
aid for both natural and legal persons. This presumably suggests that EU institutions or
161 Sander v. the United Kingdom App no 34129/96 (ECtHR, 9 May 2000). 162 Langborger v. Sweden App no 11179/84 (ECtHR, 22 June 1989). 163 Airey v. Ireland App no 6289/73 (ECtHR, 9 October 1979), paras 25-26; Aerts v. Belgium App no
25357/94 (ECtHR, 30 July 1998), para 60; McVicar v. the United Kingdom App no 46311/99 (ECtHR, 7
May 2002), para 50; Glaser v. the United Kingdom App no 32346/96 (ECtHR, 19 September 2000), para
99. 164 Steel and Morris v. the United Kingdom App no 68416/01 (ECtHR, 15 February 2005), para 69. 165 Case C-279/09 DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v Bundesrepublik Deutschland [2010] ECR I-13849, para 59. DEB, a German commercial organisation, sued the German
government for non-implementation of EU directives, but lacked funds for the advance payment of court
fees and for lawyer representation. The company applied for legal aid that was refused because of a
public interest provision in German law. 166 Ibid.
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Member States cannot totally negate the right to legal aid to legal persons.167
On the
other hand, any limitations imposed on Article 47 should conform to the authorised
limitations under the Convention and the Strasbourg Court case law on Article 6 and 13
ECHR.168
National courts will have to decide whether the national rules for granting
legal aid to legal persons undermine the essence of the right to a court, or whether they
pursue a legitimate and proportionate aim.169
In making this assessment, the national
court may consider the form of the legal person, namely whether it is a commercial
company or a non-profit making organisation, the partners or shareholders’ financial
capacity, and their ability to secure funds for the institution of legal proceedings.170
The nature and scope of the right to legal aid varies considerably across the
Member States. It ranges from the provision of free or low-cost legal services (advice
and representation);171
to partial or total exemption from or covering of court fees;172
and to direct financial assistance to cover any litigation costs, such as lawyers' fees,
court charges, reimbursement of witnesses, expert’s fees, costs in case of cost shifting
167 Ibid, paras 38-42. See also: J Engström, ‘The Principle of Effective Judicial Protection after the Lisbon
Treaty. Reflection in the light of case C-279/09 DEB Deutsche Energiehandels- und
Beratungsgesellschaft mbH’ (2011) 4(2) REALaw 53, 66; P Oliver, ‘Case C-279/09, DEB v Germany
Judgment of the European Court of Justice (Second Chamber) of 22 December 2010, nyr.’ (2011) 48
CML Rev. 2023, 2035. 168 Article 52(3) CFREU; Explanations Relating To the Charter of Fundamental Rights (n 24) 33. 169 DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v Bundesrepublik Deutschland (n 165) paras 60, 62: this judgment has expanded the EU legal aid landscape, which was initially perceived
in a rather narrow manner. Specifically, Council Directive 2002/8/EC of 27 January 2003, to improve
access to justice in cross-border disputes by establishing minimum common rules relating to legal aid (OJ
L 26/41), was limited to cross-border disputes and to natural persons lacking sufficient resources to
secure effective access to justice in civil and commercial matters, provided their application was not
manifestly unfounded. Still, decisions rejecting such applications should be duly reasoned providing for
their review. 170 Ibid. 171 All Member States provide financial assistance for legal representation and/or legal advice in criminal
and/or other non-criminal cases. For an accurate picture of the various legal aid schemes in the EU
Member States see, CEPEJ, European judicial systems: Efficiency and quality of justice (Council of Europe Publishing 2010) 49-52
https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=1
694098&SecMode=1&DocId=1653000&Usage=2 accessed 19 March 2013. 172 All Member States with the exception of Cyprus and Bulgaria. One should bear in mind also that
France, Spain, and Luxembourg provide free access to all courts.
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rules.173
The rules for the determination of the eligibility criteria also vary involving
means or merits tests, or a combination of both, or none of the two.174
More
importantly, the Strasbourg court established in its seminal Airey case that impediments
to access to courts due to financial considerations could also be addressed, for instance,
via simplified procedures, such as small claims.175
Accordingly, in some Member States
there are certain alternative or complementary measures to legal aid schemes such as
legal expenses insurance, contingency fees, success fees, and third party litigation
funding.176
2.4 Summarising Main Remarks
The above analysis has shown the width and depth of an apparently ‘innocent’
provision, that of Article 47 CFREU. It should be underscored that the categories of
procedural guarantees identified and analysed above are not watertight, and many issues
and themes falling under one heading on one occasion, may be associated with another
category at a different instance.177
What is more, there are various limitations to the
scope and level of protection guaranteed by Article 47 CFREU. A balanced analysis
shows that these limitations can only marginally affect a broad understanding of Article
47 CFREU, especially taking into account the existing EU competence on civil justice
173 Belgium, Slovenia, and Spain: technical experts’ fees; Bulgaria, Estonia, Latvia, Lithuania, and UK-
Scotland: costs for the preparation of documents for the filing of a case; Greece: cost of other legal
professionals such as notaries, bailiffs. On the costs of civil proceedings see inter alia, C Hodges, S
Vogenauer, and M Tulibacka, The Costs and Funding of Civil Litigation. A Comparative Perspective
(Hart Publishing 2010) 11-20. 174 This is the exceptional case of France. 175
Airey v. Ireland (n 79). 176 For more information on these alternative measures see, inter alia: C Hodges et al, The Costs and Funding of Civil Litigation. A Comparative Perspective (n 173) 20-28. 177 For example, legislative intervention in the administration of justice that can affect the judicial
determination of a particular case, affecting the balance between the parties, can be dealt within the ambit
of the equality of arms principle for a fair trial, as well as under the right to a court, or even to an
independent court. See, C Rozakis ‘The Right to a Fair Trial in Civil Cases’ (2004) 4 J.S.I.J. 96, 102.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
72
cooperation that directly impacts the right to effective access to justice (Article 81(2)(e)
TFEU).178
I have thus argued that EU institutions may adopt legislative measures in order
to reduce obstacles and difficulties that individuals face when resolving their disputes,
enforcing their EU law rights before national courts. In the remaining chapters, I will
investigate further the main argument, namely that access to justice may be used as a
yardstick for the future development of EU civil procedure measures. Therefore, I will
look at various examples of EU intervention in national procedural regimes examining
whether they can realistically promote access to justice in the EU. Specifically, I will
look at the creation of civil procedure law in the CJEU case law on national procedural
autonomy (Chapter 4), as well as at examples of sectoral and horizontal secondary
instruments of EU civil procedure law (Chapter 5) from an access to justice perspective.
Before embarking on this investigation though, I will address another
preliminary question: when should EU institutions provide civil procedure rules that
promote the application of the right of access to justice? In other words, which are the
policy parameters that render such proactive stance on the part of the EU institutions
both desirable and feasible? EU institutions will have to answer this question for every
legislative proposal in the area of civil justice. Therefore, the next chapter offers the
broad lines along which such in concreto justification for legislative action in civil
justice will have to take place.
178 See, Maduro (n 11) 286, 289.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
73
3 Civil procedure law in the EU: unravelling the policy
considerations
3.1 Introduction
‘Civil procedure […] challenges regulators. Its importance for the Internal
Market may indicate the need for uniform rules and uniform approach, but its essence –
the necessary balancing of different policy arguments […] – may require a more
complex solution.’1
In the previous chapter, I examined the right of access to justice in the EU.
Using Article 47 CFREU as a departure point, I attempted to sketch the scope of a key
right that is steadily gaining momentum in the supranational legal order. I argued that
this is a broad right, capable of affecting many facets of a civil procedure regime in the
process of facilitating the enforcement of EU law rights and obligations before national
courts and tribunals, safeguarding the rule of law in the EU legal order. I suggested that
this right be linked to the legal basis of Article 81(2)(e) TFEU, guiding EU institutions’
legislative activities in the area of EU civil procedure law. This tactic has the potential
to promote a fundamental goal. That is, to facilitate the enforcement of EU law rights
and obligations, by adopting solutions that consider all interests involved, mainly those
of the defendant and of the good administration of justice, and preventing a situation of
over-enforcement of EU law regardless of any countervailing considerations.2
This chapter seeks to shed some more light on the desirability and feasibility of
civil procedure harmonisation for the promotion of access to justice in the supranational
legal order. I will address this preliminary question before moving on with the
examination of my main research question, namely the appropriate legal basis for civil
procedure harmonisation. As a result, this chapter will offer a basis for the analysis of
1 M Tulibacka, ‘Europeanisation of Civil Procedures: In Search of a Coherent Approach’ (2009) 46 CML
Rev. 1555. 2 On the involvement of these interests in remedial and procedural CJEU case law see: C M G
Himsworth, ‘Things Fall Apart: the Harmonisation of Community Judicial Procedural Protection
Revisited’ (1997) 22(4) ELR 291, 310-311.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
74
the broader research project. I will argue that civil procedure law constitutes a broad
area, with cultural, economic, social, and historical overtones, which need to be given
due regard to achieve a coherent approach.3 In this highly controversial environment,
the fundamental right to effective remedy and fair trial should tie all policy parameters
together.
Specifically, I will explore the premises of EU intervention in national civil
procedural regimes in two steps. At an initial level, I will identify and analyse the ways
in which effective dispute resolution and enforcement of law – as the primary functions
of civil procedure law – are of particular interest to the EU, to justify the harmonisation
of national procedural regimes. To this end, I will look at the traditional arguments put
forward by scholars in favour of EU intervention in national legal systems, namely, the
functioning of the Internal Market, economic benefits, and limitation of forum
shopping. At a second level, I will endeavour to detect feasibility considerations that
may limit the scope of EU intervention into national procedural regimes. In order to
offer an overview of the stakes involved in the process of civil procedure law
convergence in the EU, I will revisit arguments stemming from the economic theory of
regulatory competition, the particularities of national legal traditions, as well as public
choice theory and political failures. As usual, I will offer a summary of the main
findings in the final part of the chapter.
3.2 The Desirability of EU Intervention into National Civil Procedural Regimes
Traditional justifications for the development of common EU private
(substantive) rules focus on the achievement of a level playing field in the Internal
Market, the increase of commercial activity due to greater legal certainty, and the
limitation of the negative facets of forum shopping. I suggest that any efforts to
intervene in national civil procedural regimes should be based on the learning outcomes
3 J I H Jacob, The Fabric of English Civil Justice (Hamlyn Trust, Stevens & Sons 1987) 3.
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achieved in the remit of private law approximation.4 Therefore, in this section, I will
examine whether, if at all, the above arguments could yield some valid results in the
area of civil procedure law harmonisation. This will reveal the actual ramifications and
limitations of these parameters in the remit of the effective dispute resolution and
enforcement of EU law, and the ensuing future harmonisation of national procedural
regimes.
3.2.1 A level playing field in the Internal Market
National civil procedural rules on, for example, the service of documents, time
limits, commencement of proceedings and obtaining evidence that are differently
regulated in each Member State can render in-court dispute resolution particularly
complicated and lengthy,5 hampering the smooth functioning of the Internal Market.
Access to judicial systems of considerably divergent quality levels may distort
competition in the Internal Market. Cross-border or domestic operators competing in the
Internal Market are on an unequal footing if one of them has access to efficient and
effective procedures while the other does not.6
To illustrate, imagine two companies resorting to the judicial avenue in order to
enforce a commercial contract.7 Company A does business in Italy, renowned for its
4 W Kennett, Enforcement of Judgments in Europe (OUP 2000) 305. 5 Commission, ‘Proposal for a Regulation of the European Parliament and of the Council establishing a
European Small Claims Procedure’ COM (2005) 87 final. 6 Ibid 5; J Engström, The Europeanisation of Remedies and Procedures through Judge-made Law: Can a
Trojan Horse achieve Effectiveness? Experiences of the Swedish Judiciary (PhD Thesis, European University Institute 2009) 32; Regulation (EC) No 1896/2006 of the European Parliament and of the
Council of 12 December 2006 creating a European order for payment procedure [2006] OJ L399/1;
Commission, ‘Green Paper On a European Order for Payment Procedure and on Measures to Simplify
and Speed up Small Claims Litigation’ COM (2002) 746 final, 14-16. 7 The International Bank for Reconstruction and Development/The World Bank, Doing Business 2011:
Making A Difference for Entrepreneurs (The World Bank and the International Finance Corporation
2010) 70, 75 http://www.doingbusiness.org/~/media/fpdkm/doing%20business/documents/annual-
reports/english/db11-fullreport.pdf accessed 03 March 2013. The possibility to enforce contracts swiftly,
at reasonable costs and without complicated procedures, plays an important role in a country’s
competitive advantage in the global economy. See also, K H Bae and V Goyal, ‘Creditor Rights,
Enforcement, and Bank Loans’ (2009) 64(2) The Journal of Finance 823: empirical research also shows that banks respond to the poor enforceability of contracts by reducing loan amounts, shortening loan
maturities, and increasing loan spreads. In other words, companies’ access to credit can vary depending
on the contract enforcement performance of the country where the company has commercial activity. Van
Rhee sees in that interrelation between economic activities and appealing litigation systems increased
possibilities of spontaneous approximation of procedural rules in competing legal orders: C H van Rhee,
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
76
judicial delays, whereas Company B develops its commercial activity in the
Netherlands, a country with swift judicial proceedings.8 In this theoretical scenario,
there is no level playing field between the companies economically active in the EU,
with procedural delays leading to increased uncertainty and transaction costs within the
Italian economy. These parameters constitute serious procedural disincentives, affecting
parties’ willingness to go to the courts,9 and rendering the Internal Market economic
freedoms deceptive and unenforceable. The creation of EU civil procedure rules could
curtail substantial differences between the various procedural regimes, promoting an
Internal Market level playing field via businesses’ equal access to justice.10
The European Small Claims Procedure11
may be seen as a step in this direction.
By introducing a common European procedure, proportional to the value of the
litigation, ESCP has contributed to the creation of a level playing field for creditors and
debtors throughout the European Union. In other words, EU intervention in national
procedural regimes has tackled the distortion of competition due to disparities in the
functioning of the procedural means afforded to litigants to pursue low value claims in
different Member States.12
[Footnotes continued on next page] ‘Harmonisation of Civil Procedure: An Historical and Comparative Perspective’ in X E Kramer and C H
van Rhee (eds), Civil Litigation in a Globalising World (T.M.C. Asser Press 2012) 48. 8 A A S Zuckerman, ‘Justice in Crisis: Comparative Dimensions of Civil Procedure’ in S Chiarloni, P
Gottwald, and A A S Zuckerman (eds), Civil Justice in Crisis (OUP 1999) 9-10: In Italy, the average
length of first instance proceedings is 3.3 years whereas the appeal process can stretch the final decision
by several more years. In contrast, in Holland, local courts reach a final decision in an average of 133
days and district ones in 626 days. On appeal, two thirds of the cases are determined within two years. 9 A J Duggan, ‘Consumer access to justice in common law countries: a survey of the issues from a law
and economics perspective’ in C E F Rickett and R T G W Telfer (eds), International Perspectives on
Consumers’ Access to Justice (CUP 1999). 10 See however below the limitations of this argument: ‘3.2.4 Assessment’ 81. 11 Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007
establishing a European Small Claims Procedure (ESCP) [2007] OJ L199/1. 12 ‘Green Paper on a European Order for Payment Procedure and on Measures to Simplify and Speed up
Small Claims Litigation’ (n 6). Whether this has really been the case, will be analysed below, ‘5.3
Horizontal EU civil procedure rules: the example of the European Small Claims Procedure’ 150.
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3.2.2 Economics of Legal Certainty
In the international environment, largely divergent procedural systems can
increase uncertainty as to the benefits from cross-border commercial activity.13
Such
legal uncertainty can lead to economic deceleration, because the information costs
regarding the various procedural regimes might outweigh the benefits from cross-border
trade.14
This relates to the assessment of the risks involved in opening up the activity to
other national markets in the EU. Such risk management necessarily involves
consideration of litigiousness and of actual circumstances and costs of litigation in the
various Member States. Intervention into Member States’ civil procedural laws via the
provision of EU rules could bring about greater neutrality and considerable limitation of
transaction costs in cross-border commerce in the Internal Market. 15
Occasional litigants, such as individual consumers and small and medium sized
companies, have a heavier burden when trying to assess the cost of resorting to cross-
border civil litigation. This could be attributed to their limited familiarisation with the
general requirements of litigation. It also relates to the procedural diversity in the EU
and the subsequent uncertainty as to the rules and outcomes of cross-border dispute
resolution.16
Consequently, citizens may avoid litigation across the borders,17
leaving
13 For a detailed analysis of the costs associated with legal diversity due to uncertainty in the area of
substantive contract law see inter alia, H Wagner, ‘Economic Analysis of Cross-border Legal
Uncertainty: the example of the European Union’ in J Smits (ed), The Need for a European Contract
Law: Empirical and Legal Perspectives (Europa Law Publishing 2005) 30-37. These involve costs of
information collection, of legal disputes, of ‘beneficial charges’ to speed up procedures, of lodging complaints, making warranty claims, and exchanging goods. 14 In the area of substantive contract law: Commission, ‘Communication from the Commission to the
Council and the European Parliament on European Contract Law’ COM (2001) 398 final, paras 30-32. 15 In the context of contract law: G Wagner, ‘The Virtues of Diversity in European Private Law’ in J
Smits (ed), The need for a European Contract Law (Europa Law Publishing 2005) 16-17;
‘Communication from the Commission to the Council and the European Parliament on European Contract
Law’ (n 14) 9. For a detailed analysis of the costs, which procedural approximation can reduce see: L E
Ribstein and B H Kobayashi, ‘An Economic Analysis of Uniform States Laws’ (1996) 25(1) J. Legal
Stud. 138-140. These costs are inconsistency, information, drafting, instability, litigation costs, and
externalities. 16 According to Galanter, a repeat player ‘has and anticipates repeated litigation [...] and has the resources to pursue its long-run interest’. The difference is that repeat players can profit from economies of scale in
adjudication simply by splitting costs of learning about litigation over various many cases. Even judicial
resolution of small claims can be cost-effective for a repeat player, who incurs lower indirect costs.
Repeat players can increase legal uncertainty because less wealthy litigants will invest more than they
would like, or could really afford, for fear that the financially stronger and more experienced party will
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
78
their EU rights unenforced, and making themselves easier prey for sellers and
producers.18
In the end, this will result in restrained cross-border commercial activity,
limited investment, consumption, and income, and limited growth rate, hampering the
smooth functioning of the Internal Market.19
Therefore, intervention into Member
States’ procedural rules might limit uncertainty, boosting cross-border trade via
increased access to cross-border civil justice in the EU.20
The most recent affirmation of the interrelation between unitary markets and
civil procedure law convergence is that of Switzerland and, as of 1 January 2011, the
application of a unified code of civil procedure.21
The rationale behind this enormous
reformative initiative was the necessity to reduce all artificial dividing lines cutting
across the Swiss cantons that created impediments.22
Empirical evidence supports the
correlation between economic growth and procedural rules of a given jurisdiction, by
[Footnotes continued on next page]
have procedural primacy. See, M Galanter, ‘Why the “Haves” Come out Ahead: Speculations on the Limits of Legal Change’ (1974) 9 Law and Society Review 497; F James, G C Hazard, and J Leubsdorf,
Civil Procedure (Ch. 6, §6.4, Foundation Press 1999). 17 Commission, ‘Report: Civil justice in the European Union’ (Special Eurobarometer 292, 2008)
http://ec.europa.eu/public_opinion/archives/ebs/ebs_292_en.pdf accessed 10 March 2013: 83% of the
respondents have never engaged in cross-border litigation and neither believes that they will do so in the
future. Moreover, over half of the respondents believe that access to cross-border civil justice is either
very difficult (20%) or fairly difficult (35%). 18 See also, B Feldman, H von Freyhold, and E L Vial, The Cost of Legal Obstacles to the Disadvantage
of Consumers in the Single Market (Report for the European Commission DG SANCO, 1998) 276-279
http://ec.europa.eu/dgs/health_consumer/library/pub/pub03.pdf accessed 17 March 2013. 19 J Smits, ‘Diversity of Contract Law and the European Internal Market’ in J Smits (ed), The Need for a
European Contract Law. Empirical and Legal Perspectives (Europa Law Publishing 2005) 170: problems to the functioning of the Internal Market derive from divergences in inter alia, procedural regimes. See
also, Wagner, ‘Economic Analysis of Cross-border Legal Uncertainty: the example of the European
Union’ (n 13) 51. 20 See: M Adams, ‘The conflicts of jurisdiction – an economic analysis of pre- trial discovery, fact
gathering and cost shifting in the United States and Germany’ (1995) 53 E.R.P.L. 79; M Tartuffo,
‘Drafting Rules for Transnational Litigation’ (1997) ZZPInt 449, 450. See further on the issue of legal
uncertainty and centralisation: S Delabruyère, ‘On ‘Legal Choice’ and legal competition in a federal
system of justice. Lesson for European legal integration’ in A Marciano and J M Josselin (eds), From
Economic to Legal Competition: New Perspective on Law and Institutions in Europe (Edward Elgar
2003) 19-44. 21 SR 272 Schweizerische Zivilprozessordnung. 22 T Domej, ‘Switzerland: Between Cosmopolitanism and Parochialism in Civil Litigation’ in X E
Kramer and C H van Rhee (eds), Civil Litigation in A Globalising World (T.M.C. ASSER PRESS 2012)
247. This weakens considerably the relevant argumentation developed by Goldstein back in 1995: S
Goldstein, ‘On comparing and unifying procedural systems’ in R Cotterrell (ed), Process and Substance
(Butterworths 1995) 36.
Zampia G Vernadaki, UCL Laws
79
allowing increased predictability of court decisions. For instance, researchers have
found that among others, the timeliness and the predominantly written character of
procedures lead to more transactions and higher investment levels.23
In addition, according to a recent business survey, the great majority of
businesspersons associate the variety of procedural systems in the EU with financial
considerations (52%); EU intervention in national judicial systems may result in costs
reduction (36%) and greater legal certainty, limiting the need to consult local legal
practitioners (33%). This is in conformity with the survey’s findings that businesses
actively choose the legal forum of adjudication (90%), consciously avoiding certain
jurisdictions, basing their choice on a series of procedural guarantees, such as the
fairness of the outcome (4.38/5), judges’ and courts’ quality (4.39/5),24
speedy dispute
resolution (4.15/5),25
and predictability of the outcome (4.32/5). The majority of those
surveyed (60%) do not envisage procedural diversity as a significant trade barrier that
would impede them from developing commercial activities in certain jurisdictions. This
conforms to the preliminary active choice of jurisdiction that businesses undertake.
Overall, procedural variety will not impede cross-border trade. However, greater
alignment of civil justice systems (38%), or even harmonisation (either at cross-border
level only (25%), or at domestic as well (22%)) will result in considerable savings for
businesses.26
23 B Hayo and S Voigt, ‘The Relevance of Judicial Procedure for Economic Growth’ (CESIFO Working Paper no. 2514, 2008) 1-31 http://www.cesifo-group.de/portal/pls/portal/docs/1/1186626.PDF accessed
03 March 2013. 24 See above, ‘2.3.2.5 The requirement for an ‘independent and impartial tribunal established by law’’ 67. 25 See above, ‘2.3.2.4 The ‘reasonable time’ requirement’ 64. 26 Oxford Institute of European and Comparative Law and the Oxford Centre for Socio-Legal-Studies,
‘Civil Justice Systems in Europe: Implications for Choice of Forum and Choice of Contract Law – A
Business Survey – Final Results’ (2008)
http://denning.law.ox.ac.uk/iecl/pdfs/Oxford%20Civil%20Justice%20Survey%20-
%20Summary%20of%20Results,%20Final.pdf accessed 08 March 2013. For further analysis of the
meaning and importance of the survey findings see, S Vogenauer and C Hodges, Civil Justice Systems in
Europe: Implications for Choice of Forum and Choice of Contract Law (Hart Publishing forthcoming August 2012). It should be underscored that the survey entails perception, not performance, data limited
only to businesses’ views. Perception data reflects the law in action. Being that as it may, the accuracy of
the data and its utility is limited due to respondents’ information availability and overall external
influences, such as law marketing, etc.: C Kern, ‘Perception, Performance, and Politics: Recent
Approaches to the Qualitative Comparison of Civil Justice Systems’ (Civil Justice System in Europe:
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
80
3.2.3 Forum Shopping
Procedural diversity between EU Member States can have another negative
consequence, commonly referred to as forum shopping.27
By ‘shopping’ a forum, the
litigant chooses the civil procedural rules of that forum. This can have significant
influence on the outcome of a judicial dispute, affecting fundamental issues such as the
cost and length of the dispute, as well as the available remedial means to redress the
injustice. Forum shopping is not problematic per se, to the extent that it offers litigants
the possibility to choose the most efficient and effective procedural system. However,
when litigants abuse this possibility, the situation becomes complicated.28
By way of illustration, forum shopping in consumer contracts could potentially
encourage companies to search for the Member States with the least favourable
procedural regimes for consumers (in terms of costs, duration, and complexity) and
transfer all disputes from their commercial activities to this jurisdiction.29
This may
considerably curtail effective enforcement of substantive EU rights, circumventing
litigants’ access to justice. The discussion on the race to the bottom is relevant; the race
to the bottom could lead to a competition of jurisdictions whereby only the one with the
lower enforcement standards survives.30
This is the so-called ‘Delaware Effect’, named
after the competition among corporate laws of different U.S. states that led to corporate
regulation in favour of the promoters and directors deciding on companies’
incorporation to the detriment of mainly minority shareholders’ protection in the State
[Footnotes continued on next page]
Implications for Choice of Forum and Choice of Contract Law, St Anne’s College, March 2008)
http://denning.law.ox.ac.uk/iecl/eventdetail.php?events_ID=1656 accessed 08 March 2013. 27 Diversity in procedural rules for the enforcement of laws constitutes according to Bell the raison d’être
of forum shopping: A S Bell, Forum Shopping and Venue in Transnational Litigation (OUP 2003) 25. 28 M A Lupoi, ‘The Harmonisation of Civil Procedural Law within the EU’ in J O Frosini, M A Lupoi,
and Mi Marchesiello (eds), A European Space of Justice (A. Longo Editore 2006) 199-200. 29 In the example of consumer contracts, one should bear in mind that according to Articles 17 and 18 of
the Regulation (EU) No 1215/2012 of the European Parliament and of the Council on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters (Recast) [2012] OJ L351/1,
consumers should be sued in the courts of their habitual residence, unless otherwise agreed after a dispute has arisen (Article 19). However, (online) contractual terms often entail jurisdiction clauses rendering
competent to hear future disputes the courts of a State other than that of the consumer’s habitual
residence. 30 H Sinn, ‘The Selection Principle and Market Failure in Systems Competition (MS)’ (1997) 66 Journal
of Public Economics 247-274.
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of Delaware.31
Once again, intervention into Member States’ procedural regimes might
address these problems.32
3.2.4 Assessment
Without nullifying the validity and importance of these arguments, one cannot
fail to notice that certain efficiencies may be overemphasised. To begin with, what
facilitates the realisation of a level playing field in the Internal Market is mainly the
substantive EU law introduced to overcome obstacles and uncertainties in the realisation
of the four constituent freedoms, namely free movement of goods, persons, capital, and
services. Civil procedure law is auxiliary to substantive law and gains significance
mainly when the enforcement of substantive law is under discussion.33
This does not
suggest that civil procedure law is secondary or second-class law. As Jacobs has put it,
‘[t]he supremacy of procedure is the practical way of asserting the primacy of the law,
the practical way of securing the rule of law, for the law is ultimately to be found and
applied in the decisions of the courts in actual cases’.34
In other words, differing
procedural rules across the Member States could only indirectly distort competition
among businesses, also complicating risk management for cross-border trade.35
In
contrast, it is only substantive EU law provisions, giving rise to diverse rights and
obligations, such as ‘the prohibition between Member States of customs duties on
31 In the context of tort law harmonisation: R J Van den Bergh and L T Visscher, ‘The Principles of
European Tort Law: The Right Path to Harmonization?’ (2006) 14(4) E.R.P.L. 520. See also, H
Søndergaard Birkmose, ‘Regulatory Competition and the European Harmonisation Process’ (2006)
E.B.L.R. 1081-1082. Nevertheless, it has also been suggested that this competition has led to a constant
process of institutional innovations, even speaking about a ‘race to the top’ or the ‘California effect’: W L
Cary, ‘Federalism and Corporate Law: Reflections Upon Delaware’ (1974) 83 Yale L.J. 663; P Genschel
& T Plfimper, ‘Regulatory Competition and International Co-operation’ (1997) 4 J.E.P.P. 626. 32 P H Lindblom, ‘Harmony of the legal spheres: A Swedish view on the construction of a unified
European procedural law’ (1997) E.R.P.L. 23-24. 33 Jacob, The Fabric of English Civil Justice (n 3) 63-67. 34 Ibid, 66. 35 That access to courts is instrumental for the effective application of Union law rights enunciating the
principle of the Internal Market is explicit in the 1992 Sutherland report. See, P Sutherland, The Internal
Market after 1992: Meeting the Challenge. Report presented to the Commission by the High Level Group
on the functioning of the Internal Market (The Sutherland Report, EU Commission - Working Document
1992) 12-15 http://aei.pitt.edu/1025/ accessed 2 March 2013.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
82
imports and exports and of all charges having of equivalent effect’36
that have directly
as their object the smooth functioning of the Internal Market.
The new formulation of Article 81 TFEU (ex Article 65 TEC) on civil justice
cooperation also testifies in favour of the same conclusion, considerably downgrading
the importance of the Internal Market reference for judicial cooperation in civil matters,
disassociating this policy area from the free movement of persons.37
This finding has
two main repercussions. On the one hand, Internal Market considerations should not
have more weight compared to other EU policies giving rise to private law rights and
obligations. On the other hand, as will be analysed in another chapter of this thesis,38
the
Internal Market cannot serve as a legal basis for EU intervention in national procedural
regimes, at least not in the current formulation of the Lisbon Treaty and certainly not as
the sole basis for EU competence.
Furthermore, the limitation of transaction costs due to the introduction of EU
civil procedure rules in all Member States will be accompanied by the creation of
additional implementation and adaptation costs in all legal orders, as well as costs
following from the limitation of the variety of options and the possibility for learning
effects from different procedural paradigms.39
For intervention to be rational from an
economic point of view, the balance between the efficiencies caused by the reduction of
transaction costs and the creation of an economy of scale on the one hand, and the extra
36 Article 28 TFEU. 37 This and other changes to the overall formulation of Article 81 TFEU will be analysed in detail in
Chapter 6 of this contribution in an attempt to identify what should be the way forward in civil justice
cooperation. 38 For further analysis see below, ‘6.3.1 Recasting the relationship between Articles 81 and 114 TFEU:
harmonisation through the backdoor?’ 196. 39 However, one should bear in mind that costs associated with uniformity, namely lack of learning
efficiencies and legal arbitrage, refer to a full/total harmonisation of civil procedure scenario, where no
chance for regulatory deviation will be left to Member States, diminishing procedural systems’ flexibility
to sense and address new needs. According to Sun and Pelkmans, the reason why literature insists on
perceiving regulatory competition and EU intervention as enemies, rather than allies, is because they take into account the pre-1992 EC practice of a rigid, total harmonisation approach based on full unanimity in
the Council. J M Sun and J Pelkmans, ‘Regulatory Competition in the Single Market’ (CEPS Working
Document No. 84, 1994) 28-29; W Kerber, ‘Inter-jurisdictional Competition within the European Union’
(2000) Fordham Int’l L.J. 233; Wagner, ‘Economic Analysis of Cross-border Legal Uncertainty: the
example of the European Union’ (n 13) 37-42.
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costs of adaptation to newly imposed rules on the other hand will have to be positive.
Currently, there is no extensive empirical data supporting this positive balance.
Finally, in the area of civil procedural rules the race-to-the-bottom scenario
seems less persuasive. The reason is that, unlike substantive law where people can
choose in detail the rules applicable to a legal relationship, in procedural matters parties
can only choose the procedural rules of a distinct forum. As a result, a scenario where
Member States decrease the overall quality of their procedural systems to make them
more appealing to foreign litigants does not sound particularly plausible. In the case of
Delaware, the introduction of lenient rules related to company incorporation rules only,
and could result in economic efficiencies for that State due to attraction of foreign
companies and the subsequent incorporation fees.40
However, procedural regimes of
low quality only generate further costs, such as the increased need for appeal
procedures, further impeding effective enforcement of rights and obligations.41
3.3 The Feasibility of EU Intervention into National Civil Procedural Law
The previous section looked at three fundamental policy parameters capable of
justifying the harmonisation of civil procedure rules in the EU. In particular,
intervention in national procedural regimes, with the aim of securing effective dispute
resolution and enforcement of EU law, actively promoting the right of access to justice
in the EU, could contribute to the functioning of the Internal Market through the
elimination of the distortion of competition. What is more, it could lead to increased
legal certainty and transparency of procedural orders, facilitating economic activities for
40 These efficiencies are also questionable, since imbalanced corporate regulation in Delaware, not
adequately protecting minority shareholders’ interests, would result in decrease of potential investors in
Delaware corporations. 41 One should consider that a race to the bottom in certain sectors, such as in intellectual property rights enforcement, could yield increased income for the local legal professionals via increased recourse to the
particular judicial system. However, Ogus suggests that a race to the bottom is a rational option only in
cases of activities producing significant cross-border effects, affecting only marginally the domestic
affairs: A Ogus, ‘Competition between national legal systems: a contribution of economic analysis to
comparative law’ (1999) 48 ICLQ 408, 415.
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all actors in the Internal Market. Finally, it could also limit the incentives for abusive
forum shopping.
Important as these policy considerations may be, they are not absolute or
completely uncontested. Specifically, divergences in Member States’ enforcement
regimes do not constitute the sole, and certainly not the most significant, source of
distortion of competition in the Internal Market. Equally, though common procedural
rules correlate with increased economic growth, the overall economic benefit when
considering the costs of implementation of these common rules is yet to be empirically
established. Finally, a race to the bottom because of the proliferation of forum shopping
pursuant to national procedural divergences would most likely lead to additional costs
for the ‘competing’ judicial systems.
Even if the desirability question in a specific case is answered in the affirmative,
the decision to intervene into Member States’ procedural systems is not an easy and
straightforward one. When considering national procedural systems from the
perspective of legal judicial tradition, inter-jurisdictional competition, and political
failures resulting from lobbyism, conflicting interests, posing feasibility questions for
the harmonisation of civil procedure law, come to the fore. This feasibility enquiry
could offer some initial criteria for EU intervention in national procedural regimes for
the facilitation of effective dispute resolution and enforcement of EU law. These criteria
should be further filtered through the prism of the fundamental right of access to justice
for the final scope of harmonised rules to be established.42
3.3.1 Legal Tradition
Member States’ legal traditions have been shaped and reshaped over time as a
result of varying historical, institutional, social, economic, and political influences.43
National civil procedural rules form part of States’ legal tradition, reflecting their
convictions about proper court organisation of the judicial system in delivering timely
42 For further analysis see below, ‘6.4 What is needed? The principles of subsidiarity and proportionality’
208. 43 M Taruffo, ‘Harmonisation in a Global Context: The ALI/UNIDROIT Principles’ in X E Kramer and
CH van Rhee (eds), Civil Litigation in a Globalising World (T. M. C. Asser Press 2012) 209.
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85
and fair judgments.44
Member States’ procedural regimes differ greatly and the
differences can be fundamental.45
Starting with the Civil – Common (originating in
England) Law divide, the most crucial differences are threefold: the role of the judge;
the function of appellate procedures; and, the civil litigation trial.46
Specifically, in civil
law countries, professional judges play a primary role in the development of the
evidence and the legal characterisation of facts, as opposed to common law systems
where this responsibility rests initially with the legal advocates. Broadly speaking,
chances for a review of both the law and the facts of a case at second instance are higher
in civil law regimes as opposed to the common law. In the latter, private litigation
usually takes place in two stages, namely a preliminary, pre-trial phase followed by the
actual trial of the case, as opposed to a single trial in civil systems consisting of many,
usually short, court sessions.47
Consequently, cultural sensitivities involved in choices of procedural regimes
may be so great that EU intervention into Member States’ law of civil procedure may be
impossible, or so complicated, that its net results may not render it desirable for
individual Member States. Furthermore, it might disrupt Member States’ legal culture,
depriving procedural systems of their richness and benefit. The end-result may be the
disruption of individual civil procedure regimes, compromising the potential for
44 K D Kerameus, ‘Procedural Harmonisation in Europe’ (1995) 43(3) Am.J.Comp.L. 404-405; H Collins,
‘European Private Law and the Cultural Diversity’ (1995) 3 E.R.P.L. 364; S Vogenauer, ‘The Spectre of a
European Contract law’ in S Vogenauer and S Weatherill (eds), The harmonisation of European contract
law: Implications for European Private Laws, Business and Legal Practice (Hart Publishing 2006) 26; P Legrand, ‘On the Unbearable Localness of Law: Academic Fallacies and Unseasonable Observations’
(2002) 1 E.R.P.L. 63. 45 On the systemic differences between civil and common-law jurisdictions see, inter alia: Legrand, ‘On
the Unbearable Localness of Law: Academic Fallacies and Unseasonable Observations’ (n 44) 61-76;
Goldstein, ‘On comparing and unifying civil procedural systems’ (n 22) 3-28. But see, A Uzelac,
‘Reforming Mediterranean Civil Procedure: is there a need for shock therapy?’ in C H van Rhee and A
Uzelac (eds), Civil Justice between Efficiency and Quality From Ius Commune to the CEPEJ (Intersentia
2008) 71. Dismissing the common-civil law dichotomy, Uzelac draws a distinction between
Mediterranean and non-Mediterranean judicial systems, which is also a distinction between well-
functioning judicial systems and unreliable and ineffective ones. 46 For an extensive, historical, and comparative analysis of the differences and similarities between the Common and Civil law judicial systems see, inter alia: M Cappelletti and B G Garth, Introduction –
Policies, Trends, and Ideas in Civil Procedure (International Encyclopedia of Comparative Law, J C B
Mohr and M Nijhoff Publishers 1987) 5-13, 23-42. 47 G C Hazard, M Taruffo, R Stürner, and A Gidi, ‘Introduction to the Principles and Rules of
Transnational Civil Procedure’ (2000-2001) 33 N.Y.U.J.Int'l Law & Pol. 773-774.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
86
effective private enforcement of both EU and domestic substantive rights and
obligations.
3.3.2 Economics of Procedural Diversity
Examining EU intervention into Member States’ procedural regimes from an
economic perspective, legal diversity constitutes a fundamental principle. The theory of
regulatory competition assumes that producers of a legal system are rivals and compete
just like producers of goods and services compete in usual markets.48
Regulators offer
favourable procedural regimes in order to increase domestic industries’ competitiveness
and attract foreign business activity.49
As legal competition is a-territorial, both
individuals and firms are authorised to choose the jurisdiction whose procedures and
principles will apply to a transaction or business.50
Functional arbitrage can promote competition of legal procedures, allowing
people to refer to many diverse and simultaneously existing legal orders. By “voting
with their feet”,51
litigants choose specific procedural systems over others, signalling
their preferences for civil procedure regulation and private enforcement of EU rights
and obligations. In other words, national governments have an incentive to promote
better procedural rules in accordance with their citizens’ expressed choices,52
sensing
and addressing new needs in the society.53
48 A Marciano and J M Josselin, 'Introduction: Coordinating demand and supply of law: Market forces or state control?' in A Marciano and J M Josselin (eds), From Economic to Legal Competition: New
Perspective on Law and Institutions in Europe (Edward Elgar 2003) 1; Søndergaard Birkmose,
‘Regulatory Competition and the European Harmonisation Process’ (n 31) 1076-1077; D Geradin and J A
McCahery, ‘Regulatory Co-opetition: Transcending the Regulatory Competition Debate’ (TILEC
Discussion Paper 2005-020, 2005) 1. 49 Adapted to regulatory competition in civil procedure: K Gatsios & P Holmes, ‘Regulatory
Competition’ in P Newman (ed), The New Palgrave Dictionary of Economics and the Law (Vol 3,
Macmillan 1998) 271. 50 Ogus, ‘Competition between national legal systems: a contribution of economic analysis to
comparative law’ (n 40) 408. 51 C M Tiebout, ‘A Pure Theory of Local Expenditures’ (1956) 64(5) J.Pol.Econ. 416-424. 52 H Siebert & M J Koop, ‘Institutional Competition Versus Centralisation: Quo Vadis Europe ?’ (1993)
9(1) Oxf Rev Econ Policy 15-30. 53 This is the so-called ‘learning effect’ of legal diversity. For the applicability of this argument in EU
contract law, see: G Wagner, ‘The Economics of Harmonisation: The Case of Contract Law’ (2002) 39
CML Rev. 1012; Kerber, ‘Inter-jurisdictional Competition within the European Union’ (n 39) 233.
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EU intervention into national procedural regimes might reduce the spectrum of
ex ante or ex post choice of the rules of civil procedure of the forum where parties could
litigate their disputes.54
Similarly, it is doubtful whether centrally imposed procedural
rules, even of exceptionally high quality, could remedy the limitation of learning effects
associated with procedural diversity.55
Procedural diversity promotes a communication
process between different legal orders and regimes whereby convergence occurs
gradually and in a balanced way. Local authorities have an information advantage
regarding the specificities and actual needs of their procedural systems and can proceed
to an approximation of their procedural rules with those of other legal orders. On the
other hand, the approximating result might be less effective at a supranational, EU, level
due to limited possibilities for such in-depth knowledge of the various procedural
regimes. This in turn might lead to unsystematic convergence of civil justice systems,
creating more problems in the enforcement of EU rights and obligations before national
courts than purported to resolve in the first place.56
3.3.3 Influence of Lobbyism
Public choice theory refers to the role pressure groups play in the creation and
introduction of legislation. Interest or pressure groups operating in all Member States
engage in the legislative process, influencing the direction and content of rules,
furthering their interests in a certain area.57
These pressure groups have only dispersed
powers when they operate in an environment of procedural diversity, solely influencing
54 J S Parker, ‘Comparative Civil Procedure and Transnational “Harmonisation”: A Law-and-Economics
Perspective’ (2009) George Mason Law & Economics (Research Paper No. 09-03) 1-32
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1325013 accessed 25 March 2013. 55 L Visscher, ‘A Law and Economics View on Harmonisation of Procedural law’ in X E Kramer and C
H van Rhee (eds), Civil Litigation in a Globalising World (T.M.C. ASSER PRESS 2012) 78. 56 Ogus, ‘Competition between national legal systems: a contribution of economic analysis to
comparative law’ (n 50) 415-416; Miller suggests that the lack of efficiency may result from the
employment of elites for the creation of centralised EU rules of civil procedure. G P Miller, ‘The Legal-
Economic Analysis of Comparative Civil Procedure’ (1997) 45 Am.J.Comp.L. 917-918. 57 A Geiger, ‘Lobbyists — the Devil’s Advocates?’ (2003) 24(11) ECLR 559; R D Tollison, ‘Public Choice and Legislation’ (1988) 74(2) Va.L.Rev 339; S George and I Bache, Politics in the European
Union (2nd edn, OUP 2006); Wagner, ‘The Economics of Harmonisation: The Case of Contract Law’ (n
53) 1000; R Van den Bergh, ‘Towards an Institutional Legal Framework for Regulatory Competition in
Europe’ (2000) 53(4) KYKLOS 448-451; Kennett, Enforcement of Judgments in Europe (n 4) 306:
talking about enforcement agents and their varying role and strength per Member State.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
88
domestic procedural regimes. In cases of centrally developed civil procedure rules, at a
supranational EU level, these interest groups might be able to exercise more imminent
and widespread influence on regulators.58
Instead of lobbying with 28 different
regulators, they would have to lobby with a central, EU authority, while simultaneously
affecting all Member States.59
3.3.4 Countervailing Considerations
Although these feasibility criteria encapsulate serious considerations on the
actual role and functions of national procedural regimes in the EU, they nonetheless rest
on some unrealistic assumptions. To begin with, not all rules of civil procedure form
part of Member States’ legal tradition. For example, rules on calculation of periods and
deadlines in civil litigation, on service of process and on initiation of proceedings by
writ, mainly serve the objective of prompt administration of the trial, providing the
infrastructure for organised systems of civil procedure.60
Even if the EU alters these
technical rules, Member States will still get the chance to have another form of juridical
administration that might be more efficient and effective than their original one,61
not
influencing negatively their national legal tradition or the effectiveness of rights and
obligations enforcement.
In addition, civil procedure rules are not always worth maintaining simply
because they form part of a State’s legal tradition.62
For example, many civil law EU
countries have been traditionally hostile to the introduction of collective compensatory
58 Søndergaard Birkmose, ‘Regulatory Competition and the European Harmonisation Process’ (n 31)
1079; Van den Bergh, ‘Towards an Institutional Legal Framework for Regulatory Competition in Europe’
(n 57) 448-449. In the area of environmental liability law harmonisation see, inter alia: M Faure and K de
Smedt, ‘Harmonisation of environmental liability legislation in the European Union’ in A Marciano and J
M Josselin (eds), From Economic to Legal Competition. New Perspectives on Law and Institutions in
Europe (Edward Elgar 2003) 78-79. 59 W Kerber, ‘The Theory of Regulatory Competition and Competition Law’ (July 2008)
http://ssrn.com/abstract=1392163 accessed 23 March 2013. 60 Kerameus, ‘Procedural Harmonisation in Europe’ (n 44) 404-405; Van Rhee, ‘Harmonisation of Civil
Procedure: An Historical and Comparative Perspective’ (n 7) 49. 61 Kerameus, ‘Procedural Harmonisation in Europe’ (n 44) 404-405. 62 S Weatherill, ‘Why object to the Harmonisation of Private Law by the EC?’ (2004) E.R.P.L. 652: two
indicative examples of such choices not worth maintaining, either at a local or at a European level, are
anti-Semitism and economic bigotry. See also, Kennett, Enforcement of Judgments in Europe (n 4) 311:
‘it would be a pity if the existence of an anachronistic, unprincipled and in many ways ineffective
domestic system was used as an argument to combat reforms of a European origin’.
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89
relief in their judicial systems, for fear it could promote a culture of litigation. However,
in the realm of the European Union, business practices breaching EU law provisions
increasingly tend to lead to dispersed loss, where each of a large number of victims
suffers an individually small loss. Opting for individual private enforcement of these
rights does not constitute a realistic and effective means of redress since the costs and
the general litigation requirements are disproportionate to the actual harm caused,
usually of only a few tens or hundreds of euros.63
Besides, in case compensation for
unlawful business practices affecting large numbers of harmed people could only be
resolved via the filing of the corresponding number of individual lawsuits, Member
States’ national courts would face a complete standstill and backlog, undermining any
aspirations of timely and fair justice. As a result, the promotion of effective access to
judicial enforcement and dispute resolution of EU law may outweigh concerns
regarding Member States’ legal cultural identity, pointing towards further EU
intervention into national procedural regimes.64
Additionally, despite considerable divergences in Member States’ fundamental
characteristics of civil procedural regimes, the civil/common law dichotomy becomes
less striking with time.65
For instance, both in English civil procedure and in continental
European jurisdictions, judges become more and more active in the actual management
of the cases before them, taking up the role of case-managers in civil proceedings.66
63 Commission, ‘Public Consultation: Towards a Coherent European Approach to Collective Redress’ (Staff Working Document) SEC (2011) 173, 3. See, H W Micklitz and A Stadler, ‘The Development of
Collective Legal Actions in Europe, Especially in German Civil Procedure’ (2006) E.B.L.R. 1476-1477.
The option of joining many individual claims against the same defendant before the same court is not
effective either, since courts still treat these cases as a pool of individual lawsuits with procedural actions
of each plaintiff leaving the rest of the plaintiffs unaffected. One possible advantage is the option for joint
hearings and joint taking of evidence, which can reduce plaintiffs’ individual legal costs. 64 For a further analysis of collective redress from an access to enforcement and dispute resolution
perspective see below, ‘5.4 What is next? Towards a coherent approach to collective redress’ 165. 65 Lindblom, ‘Harmony of the legal spheres: A Swedish view on the construction of a unified European
procedural law’ (n 32) 20; M Van Hoecke, ‘The Harmonisation of Private Law in Europe: Some
Misunderstandings’ in M Van Hoecke and F Ost (eds), The Harmonisation of European Private Law (Hart Publishing 2000) 7: suggesting that even the term ‘Common Law’ has continental origins in the
French word ‘commun’ and the Norwegian one ‘lov’. 66 A remaining difference is that in England, judges deal with the formal aspects of the civil proceedings,
whereas in many continental European countries judges also deal with the substance of the case. Lord
Woolf, Access to Justice: Final Report (1996) http://www.dca.gov.uk/civil/final/index.htm accessed 04
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
90
What is more, the Woolf reforms limited and streamlined pre-trial disclosure in the
English judicial system. At the same time, many continental European jurisdictions
investigate the prospects of introducing limited discovery provisions in their domestic
procedural regimes.67
Overall, the civil/common law disparities have subsided
considerably over the last decades, proving the possibility for convergence and
approximation of legal orders. As Andrews has put it: ‘[…] the Common Law or Civil
Law tradition is not an immutable genetic stamp’.68
Recent empirical data are
inconclusive as to the existence, or not, of systematic differences between civil and
common-law countries.69
The civil/common law dichotomy has no influence
whatsoever on the complexity, the cost, and the length of civil proceedings, the three
parameters that are indicative of a judicial systems’ efficiency.70
[Footnotes continued on next page]
March 2013. See also, C H Van Rhee, ‘The Development of Civil Procedural Law in Twentieth-Century
Europe: From Party Autonomy to Judicial Case Management and Efficiency’ in C H Van Rhee (ed), Judicial Case Management and Efficiency in Civil Litigation (Intersentia 2008) 11-25. The 1898 Austrian
Zivilprozessordnung and the 1999 English Civil Procedure Rules are the most important reference points
in the approximation of civil/common law jurisdiction regarding the role of the judge. 67 Lord Woolf, Access to Justice: Final Report (n 66); C H van Rhee, ‘Harmonisation of Civil Procedure:
An Historical and Comparative Perspective’ in X E Kramer and C H van Rhee (eds), Civil Litigation in a
Globalising World (T.M.C. ASSER PRESS 2012) 40-41. 68 N Andrews, ‘A modern procedural synthesis: the American Law Institute and UNIDROIT’s
‘Principles and rules of transnational civil procedure’’ (2009) TCR 52–58 (cited in Van Rhee,
‘Harmonisation of Civil Procedure: An Historical and Comparative Perspective’ (n 67) 40). 69 H Spamann, ‘Legal Origin, Civil Procedure, and the Quality of Contract Enforcement’ (2010) 166(1)
Journal of Institutional and Theoretical Economics 149
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1452744 accessed 13 March 2013. Spamann uses as a reference point the World Bank Doing Business 2004 Report, which concluded that civil law countries
are more formalistic, with more delays and costs compared to common law countries. The International
Bank for Reconstruction and Development/The World Bank, Doing Business2004 – Understanding
Regulation (World Bank and OUP 2004)
http://rru.worldbank.org/Documents/DoingBusiness/2004/DB2004-full-report.pdf accessed 13 March
2013. However, the author suggests that the World Bank based its findings on flawed data and that in
reality there is no correlation between procedural efficiency and the civil/common law divide. Be that as
it may, his analysis, as well as subsequent Doing Business Reports with correct data, have a limited scope.
Firstly, they focus on a single case scenario, leaving aside the entire range of issues occurring in civil
litigation. More importantly, this scenario refers to first instance cases only. They have not considered the
foundational differences between civil/common law systems, such as the possibility for appeal proceedings, which is believed to occur more often in civil law countries, extending the temporal and
financial limits of litigation. 70 M Zander, ‘Why Lord Woolf's Proposed Reforms of Civil Litigation should be Rejected’ in
A A S Zuckerman and R Cranston (eds), Reform of Civil Procedure. Essays on "Access to Justice"
(Clarendon Press 1995) 80.
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91
Turning to the economic theory of federalism and competition of jurisdictions,
one should not overlook some of the unrealistic assumptions it rests upon.71
For
regulatory competition to be a successful option, prospective civil litigants should be
able to profit by procedural diversity in the EU, namely through the choice of the more
efficient procedural system.72
This suggestion presupposes that civil litigants are aware
of the diverse systems of civil procedure available in the EU; it also presupposes that
litigants have the actual capacity to fully understand the impact of the various
procedural rules, making informed decisions.73
However, this is not an easy and
straightforward possibility in the case of 28 competing systems of civil procedure in the
EU.74
It is important to make a basic distinction here; large international companies,
having the resources to engage legal teams on a permanent basis, could take advantage
of the efficiencies of inter-jurisdictional competition. In the case of a dispute with a
small business or with individual consumers, they would be able to identify the
procedural system of dispute resolution and enforcement of rights and obligations,
which is most beneficial for them. In contrast, individual litigants and small and
medium sized companies usually will lack the money, time, or legal foundations to
make relevant choices of procedural rules and profit from competition among
jurisdictions.75
The reason is that they will not be in a pragmatic position to gain
information about different legal systems, assess this information, and impose their
71 For a detailed analysis of regulatory competition’s limitations see, inter alia: D C Esty and D Geradin,
‘Regulatory Co-opetition’ (2000) 3(2) J Intl Econ L 240-248
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=228441 accessed 25 March 2013. 72 One should bear in mind that such choice is limited in cross-border transactions by the Brussels I
Regulation provisions on exclusive jurisdictions of Article 22 (for example for matters related to
immovable property). For the various sources of impediments to litigants’ mobility, see: Van den Bergh,
‘Towards an Institutional Legal Framework for Regulatory Competition in Europe’ (n 57) 442. 73 In the context of European Contract law, see: ‘Communication from the Commission to the Council
and the European Parliament on European Contract Law’ (n 14) 9. 74 Special Eurobarometer 292 (n 17): ‘The survey highlights the fact that getting involved in a civil justice matter abroad is a frightening, complicated and unknown prospect for most Europeans’; K D Kerameus,
‘Procedural Implications of Civil Law Unification’ in A Hartkamp et al (eds), Towards a European Civil
Code (Kluwer Law International 2004) 155. 75 See, further: F K Juenger, ‘What’s Wrong with Forum Shopping?’ (1994) Syd LR 7-13; B R Opeskin,
‘The Price of Forum Shopping: A Reply to Professor Juenger’ (1994) Syd LR 14-27.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
92
actual will on their counterparts, especially when these are the above-mentioned large,
multinational companies.76
This last submission could have far-reaching consequences in terms of access to
justice; regulatory competition might lead to inequality of arms and denial of access to
justice at least for one of the parties to a dispute.77
Indeed, in the example of a big
company having a dispute with a small one, if all parameters of civil procedure are
unregulated, the dispute might result in the imposition of the least favourable procedural
regime for the small company. Nevertheless, this theoretical scenario might entail
efficiencies for consumers and SMEs, if it can combine lower judicial standards with
lower prices and lower costs.78
Furthermore, less intrusive suggestions might address
the challenges stemming from the inequality between the parties. For example, one
could think of the role of information intermediaries79
- legal journals, pro-bono
lawyers, online legal services, and consumer organisations could offer advice on
national civil procedure systems depending on the type of dispute arising. In that case,
even less advantaged individuals and small companies could take into account this
information and benefit from regulatory competition and mobility from one jurisdiction
to the other when enforcing their rights.
In addition, EU law could contribute to increased information flow on the
various procedural systems via the standardisation of legal procedural terminology. This
76 See J T Johnsen, ‘Vulnerable groups at the legal services market’ in A Uzelac and C H van Rhee (eds),
Access to Justice and the Judiciary. Towards New European Standards of Affordability, Quality, and Efficiency of Civil Adjudication (Intersentia 2009) 32-34. Johnsen speaks of legal illiteracy and
distinguishes between professional and non-professional buyers of legal services. In the first category,
one can find businesses and industries, as well as rich individual litigants. In the second category, one can
group ordinary and poor people, as well as small firms and independent self-employed individuals. 77 M Storme, Approximation of Judiciary Law in the European Union (M Nijhoff 1994) 48. The principle
of equality of arms is inherent in the concept of a fair trial under Article 6 of European Convention on
Human Rights: Feldbrugge v. The Netherlands App no 8562/79 (ECtHR 29 May 1986); Neumeister v.
Austria App no 1936/63 (ECtHR, 27 June 1968). 78 See however, Ogus, ‘Competition between national legal systems: a contribution of economic analysis
to comparative law’ (n 40) 408. See also: M Cohen, ‘Commentary’ in E Eide and R Van den Bergh (eds),
Law and Economics of the Environment (Juridisk Forlag 1996) 170. Cohen suggests the creation of minimum quality standards at centralised level for reasons of ‘equality, justice, or pure paternalism’;
Weatherill, ‘Why object to the Harmonisation of Private Law by the EC?’ (n 62) 656. 79 On the role of information intermediaries see: T F Cotter, ‘Some Observations on the Law and
Economics of Intermediaries’ (2006) 67 Mich. St. L. Rev. 67-82; S Grundmann, ‘Information, party
autonomy and economic agents in European Contract Law’ (2002) 39 CML Rev. 269–293.
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93
could prove beneficial for a substantial communication between and cross-fertilisation
of the various legal orders, enabling the accurate identification of differences and
similarities between procedural systems, increasing possibilities for mobility through
choice of forum.80
Currently, such common terminology is missing and common-law
lawyers use terms that civil-law lawyers cannot fully understand and vice versa. An
indicative historic example is the use of the terms ‘trial’ and ‘pre-trial’ in a 1991
publication entitled ‘Civil Procedure in EC Countries: An Industry Report’. This report
based its findings on a questionnaire survey sent to the then 12 EU Member States
asking information on their civil litigation systems. These questionnaires followed the
English (common law) procedural terminology, hence confusing continental
correspondents and leading to inaccurate and at times misleading answers.81
Nevertheless, there are many costs attached to the creation of sufficient
information resources, their maintenance, and their constant updating. Additionally, it is
still not certain whether litigants would indeed devote the essential time to consult these
resources, and even if they did so, whether they would be able to comprehend all the
legal issues and necessary comparisons involved.82
Finally, it is still debatable whether
people would prefer to move to a foreign, more favourable jurisdiction to solve their
disputes. Moving to another country to solve their disputes would mean additional
costs, psychological burden, and loss of time. It is highly unlikely that individual
consumers and small businesses would ever decide to pursue the enforcement of EU
80 Van den Bergh, ‘Towards an Institutional Legal Framework for Regulatory Competition in Europe’ (n
57) 442-443. However, not all diverging terms are susceptible to standardisation. This can only be
envisaged in cases of diverging procedural terminology aimed at regulating similar issues more or less. In
this case, maintaining distinct terms only complicates the situation, blurring litigants’ capacity to find
valuable information on the various judicial systems, subsequently choosing the forum for dispute
adjudication. Evidently, the example of trial constitutes a systematic difference between civil and
common-law jurisdictions and is not suitable for future standardisation. The example demonstrates the
gravity of procedural terminology in reinforcing regulatory competition between jurisdictions. It also
demonstrates in an indirect way the inherent limitations of the inter-jurisdictional competition theory in
the remit of the European Union. 81 See: Goldstein, ‘On comparing and unifying civil procedural systems’ (n 22) 3, citing: D McIntosh
and M Holmes, Civil Procedure in EC Countries: An Industry Report (Lloyd's of London Press 1991). 82 On people’s ‘functional illiteracy’ that deprives them of the possibility to take advantage of information
on legal problems and their remedies see: M Zander, The State of Justice (The Hamlyn Trust, Sweet &
Maxwell 2000) 33-34.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
94
rights or obligations in a foreign jurisdiction.83
Only multinational companies could
consider the additional costs attached to litigation in a foreign country acceptable in
case great amounts of money were at risk.
Additionally, cultural and linguistic differences among EU Member States could
limit the effectiveness of regulatory competition. The interpretation and actual meaning
of a rule is much dependent on Member States’ legal tradition and language; the same
rule may lead to diverse results due to cultural and linguistic nuances attached to it, and
prospective litigants cannot always make an informed choice as to the most beneficial
system. This argument becomes more apparent if we think of the economics of
federalism in the US. In this nation, regulatory competition has led to the improvement
of the states’ legal systems via the creation of more efficient and attractive rules.84
Cultural and linguistic diversity inherent in the EU is missing at the other end of the
pond.85
Finally, the various pressure groups and the procedural interests they promote
could influence national civil procedural regimes in a manner detrimental for the
enforcement of EU law, the protection of individual rights, and the observance of
obligations. One could imagine lawyers exerting pressure for a reform that would
maintain, if not increase, the level of legal costs, despite resulting in an unnecessarily
83 See, Oxford Institute of European and Comparative Law and the Oxford Centre for Socio-Legal-
Studies, ‘Civil Justice Systems in Europe: Implications for Choice of Forum and Choice of Contract Law
– A Business Survey – Final Results’ (2008)
http://denning.law.ox.ac.uk/iecl/pdfs/Oxford%20Civil%20Justice%20Survey%20-%20Summary%20of%20Results,%20Final.pdf accessed 13 March 2013. Of the 100 companies surveyed,
only 5% were SMEs with employees between 10-249 people. The overwhelming majority of respondents
(95%) were large companies with personnel over 250 people. This supports the idea that only large
companies take advantage of procedural mobility between Member States. What is more, only 2% of the
26.691 individual respondents have been involved in cross-border litigation and among them 19% were
self-employed people, including business owners: Commission ‘Civil Justice Report’ (Special
Eurobarometer 351, 2010) 22-26 http://ec.europa.eu/public_opinion/archives/ebs/ebs_351_en.pdf
accessed 14 March 2013. 84 For similar arguments in the field of European Contract Law Harmonisation, see: Vogenauer, ‘The
Spectre of a European Contract law’ (n 44) 21-22. 85 Wagner, ‘The Economics of Harmonisation: The Case of Contract Law’ (n 53) 1008ff; B H Kobayashi and L E Ribstein, ‘The Economics of Federalism’ (2006) George Mason University Law and Economics
Research Paper Series 6: the existence of a common language all over the US, the existence of common
mass media and of common history diminishes the impact of any cultural differences among the various
States. Such common background is lacking in the EU, perplexing the situation of simultaneous existence
of more than 28 procedural regimes.
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expensive judicial regime, depriving citizens of the possibility to enforce their EU rights
via recourse to the courts. The fact that the judicial avenue will be equally expensive for
domestic rights enforcement has no repercussions.86
Harmonisation of national procedural regimes could secure effective
enforcement of ‘losing’ interest groups’ EU rights via increased access to justice. For
example, consumer interests in the formation of the various national civil procedural
rules usually experience less negotiating power compared to producer interests. The
latter have better organisation structures and more effective interest organisational
ability at the domestic level, prevailing in the lobby challenge, potentially causing
biased civil procedural rules at the expense of the losers (consumers).87
Lacking any EU
intervention, there is a risk of discrimination in favour of domestic producers.
3.4 Synopsis
In the decentralised judicial system of the EU, national procedural regimes are
of tremendous importance for the dispute resolution and enforcement of EU law.
Therefore, EU intervention in Member States’ civil procedural rules for the promotion
of access to justice could be deemed desirable for the limitation of the distortion of
competition due to economic operators’ access to judicial systems of diverging quality
and efficiency. Additionally, it could increase commercial activities in the EU via
greater visibility of litigation costs and overall certainty as to the procedural rules and
expected litigation results. Finally, it could also reduce incentives for abuse of forum
86 See for instance, case 199/82 Amministrazione delle Finanze dello Stato v SpA San Giorgio [1983]
ECR 3595, paras 17-18. Italian national evidentiary rules, requiring negative written proof for the
taxpayer to establish that an unlawfully (in breach of EU law) imposed charge had not been passed on,
should be put aside. In spite of the applicability of the same evidentiary rule to taxpayers’ claims arising
from national tax law infringements as to those arising from EU rights (principle of equivalence), this rule
systematically places the burden of proof upon the taxpayer, rendering the reparation of charges levied
contrary to EU law excessively difficult (principle of effectiveness). For further analysis of the principle of national procedural autonomy see below, ‘4.2 Judge-made EU civil procedure rules and the principle
of national procedural autonomy’ 99. 87 In the area of competition law, see: O Budzinski, The Governance of Global Competition: Competence
Allocation in International Competition Policy (Edward Elgar 2008) 106; Geradin and McCahery,
‘Regulatory Co-opetition: Transcending the Regulatory Competition Debate’ (n 48) 10.
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96
shopping and the subsequent race to the bottom. However, divergences in Member
States’ enforcement regimes do not constitute the sole source of distortion of
competition in the Internal Market. Equally, despite the correlation between common
procedural rules and increased economic growth, their overall economic benefit, the
implementation costs included, is yet to be empirically established. Finally, a race to the
bottom because of the proliferation of forum shopping pursuant to national procedural
divergences would most likely cause additional costs for the ‘competing’ judicial
systems.
Similarly, EU institutions should consider some additional parameters, which
could compromise the value of the harmonisation effort. Specifically, EU intervention
in national procedural regimes could have a negative impact on Member States’ legal
traditions, diminishing procedural diversity, competition among the various
jurisdictional regimes, and potential for regulatory innovation and experimentation.88
Be
that as it may, efficiencies from the competition of procedural systems presuppose
considerable information and choice capacities, generally lacking in the case of
individual consumers and SMEs. This could compromise equal access to justice for the
resolution of disputes and the enforcement of EU law rights and obligations.
Additionally, national rules on the administration of trials and general court
infrastructure can easily be harmonised, whereas even fundamental procedural choices
may have to be revised in light of the right of access to justice. This is the more realistic
as the civil/common law divide gradually fades. Finally, considerations on the power of
lobbying groups could actually support EU intervention in national procedural systems
to secure ‘losing’ interest groups’ effective access to justice.
In the remainder of the thesis, I will look at existing modes of EU intervention in
national procedural regimes. I will first examine some landmark CJEU case law on
national procedural autonomy and the principles of equivalence and effectiveness
88 Kerber, ‘Inter-jurisdictional Competition within the European Union’ (n 39) 221, 249; C Barnard and S
Deakin, ‘Market Access and Regulatory Competition’ in C Barnard and J Scott (eds), The Law of the
Single European Market (Hart Publishing 2002); Goldstein, ‘On comparing and unifying civil procedural
systems’ (n 22) 43.
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(Chapter 4). In addition, I will look at various secondary, both sectoral and horizontal,
legislative measures introducing civil procedure rules in the EU (Chapter 5). My aim is
to identify the potential of these modes of intervention in national procedural systems to
contribute to the development of coherent EU civil procedure rules promoting the right
of access to justice. Based on the findings of these two chapters, I will then analyse
what in my opinion constitutes the better solution for a coherent EU civil procedure law
under the current Treaty scheme (Chapter 6).
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
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4 Civil procedure law in the EU: the role of the CJEU case law
4.1 Introduction
The previous chapter argued that EU intervention in national procedural regimes
for the promotion of access to justice might be desirable for the creation of a level
playing field for dispute resolution and EU law enforcement in the Internal Market.
Economic acceleration could also be associated with procedural efficiency and fairness
of civil justice systems for the enforcement of EU law rights and obligations. Finally,
the restriction of possibilities for forum shopping and the ensuing race to the bottom is
fundamental for the functioning of the supranational legal order. These efficiencies are
not absolute, and should be weighed against various political, historical, and economic
countervailing interests. These include Member States’ legal traditions and potential
resistance to change, efficiencies from regulatory differentiation and experimentation,
and the impact of lobbyism on rule setting at a centralised level.
In this chapter, I will further consolidate my argument on the role of the right of
access to justice in the development of EU civil procedure law. Adopting a pragmatic
viewpoint, I will investigate the development of EU procedural law via the case law of
the CJEU. CJEU paved the way for the effective and measured enforcement of EU law
in national legal orders. I will focus on the CJEU case law in the broader area of
European remedial and procedural law in order to offer an objective insight into the
rationale, fashion, and scope of EU interventionism in the area of national procedural
law. I will examine whether, if at all, this case law echoes the procedural guarantees of
the right of access to justice of Article 47 CFREU, broadly construed. For the purposes
of this chapter, I will not distinguish between administrative, criminal, or civil
procedure law cases, since the relevant case law is rather homogenous.
With this in mind, I will commence my analysis with some fundamental case
law on national procedural autonomy, focusing on the principles of equivalence and
effectiveness. My objective is to investigate the impact of this case law on national
procedural systems; how has the Court employed the principles of equivalence and
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effectiveness in order to harmonise national procedural systems? In the second part of
the analysis, I will reassess the impact of the CJEU case law on national procedural
autonomy from the perspective of the promotion of the right of access to justice: Is the
EU judicature after all the appropriate institutional body to create a coherent and
systematic EU civil procedure law? I will summarise the main findings of the analysis
in the final section of the chapter.
4.2 Judge-made EU civil procedure rules and the principle of national
procedural autonomy
In the decentralized model of justice, EU rights and obligations are primarily
adjudicated before national courts. To the extent that an issue governed by EU law does
not fall within the CJEU’s jurisdiction, it is for Member States’ courts to hear the dispute
on that issue.1 The Court envisages the principle of procedural autonomy as a state of
affairs where EU and national procedural laws closely cooperate in the areas falling
within the scope of EU law. Where there are no EU rules on the procedural aspects of an
EU law related dispute, Member States are responsible to designate the courts having
jurisdiction and to determine the rules of procedure according to which EU rights will be
protected.2 However, this is only a compromise; effective enforcement of EU law rights
and obligations is the ultimate goal and procedural autonomy should be adapted to this
objective.
The onset of the debate on the recognition of national procedural autonomy by
the CJEU goes back more than four decades in a set of cases regarding charges imposed
by Member States in breach of EU Treaty provisions.3 In this section, I will analyse the
1 See above, ‘1.3 Research Focus: Dispute Resolution and Enforcement in the EU’ 23. 2 See: case 179/84 Piercarlo Bozzetti v Invernizzi SpA and Ministero del Tesoro [1985] ECR 2301; case
68/79 Hans Just I/S v Danish Ministry for Fiscal Affairs [1980] ECR 501, para 25; joined cases C-6/90 and C-9/90 Andrea Francovich and Danila Bonifaci and others v Italian Republic [1991] ECR I-05357,
para 42. 3 E Storskrubb, ‘What Challenges Will European Procedural Harmonisation Bring?’ (Toronto Conference
of International Association of Procedural Law, 2009) 2. Kakouris denies that national procedural
autonomy constitutes a manifestation of Member States’ sovereignty in: C N Kakouris, ‘Do the Member
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100
CJEU milestones in the area of national procedural and remedial autonomy as evinced
through the principles of equivalence and effectiveness. I will break down the analysis
into many sub-sections in accordance with the national remedial or procedural rule
reviewed by the Court each time, only to show that the content, scope, and effect of
these principles have expanded with the time, embracing more and more aspects of
national procedural and remedial regimes. As Brown has put it,
Enforcement takes us into the whole paradigm of judicial procedure. This
includes not only questions of standing, time limits, appropriate form of actions
[…], but also to preliminary issues of access of justice. Here I would include an
adequate system of legal aid and advice, and a court system not so congested
that justice delayed amounts to justice denied. […] Then, once a judgment is
secured in the national court, it is of little worth unless there exist effective
processes for its execution.4
4.2.1 The principle of equivalence: a brief evaluation
The national priority over procedural rules is subject to an important condition;
national procedural rules cannot be less favourable when applied to EU law related
disputes than when applied to similar actions of domestic nature (principle of
equivalence). On the identification of a similar domestic action, three characteristics
must be considered - the purpose, the cause of action, and the basic elements of the
national procedural rules under scrutiny.5 Accordingly, an action based on a national
[Footnotes continued on next page]
States possess Judicial Procedural Autonomy?’ (1997) 34 CML Rev. 1389. Kilpatrick suggests that we
should be talking about ‘national remedial autonomy’ rather than procedural: this is due to the lack of a
clear distinction inter se of procedures and remedies as distinctive parts of a legal claim in: C Kilpatrick,
‘The Future of Remedies in Europe’ in C Kilpatrick, T Novitz, and P Skidmore (eds), The Future of
Remedies in Europe (Hart Publishing 2000) 4. Delicostopoulos and Gerven suggest that we should be
talking about ‘national procedural competence’ allowing for a more flexible conception of Member
States’ responsibility in procedural issues in: J S Delicostopoulos, ‘Towards European Procedural
Primacy in National Legal Systems‘ (2003) 9(5) ELJ 601; W Van Gerven, ‘Of Rights, Remedies and
Procedures’ (2000) 37 CML Rev. 502. 4 L N Brown, ‘National Protection of Community Rights: Reconciling Autonomy and Effectiveness’ in J
Lonbay and A Biondi (eds), Remedies for Breach of EC Law (John Wiley &Sons 1997) 70. 5 Case C-326/96 B.S. Levez v T.H. Jennings (Harlow Pools) Ltd [1998] ECR I-7835, para 44; case C-
78/98 Shirley Preston and Others v Wolverhampton Healthcare NHS Trust and Others and Dorothy
Fletcher and Others v Midland Bank plc [2000] ECR I-3201, para 61.
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statute implementing the Union law principle on the requirement for equal pay between
men and women for equal work does not constitute an adequate comparator to an action
based directly on the Treaty principle, being essentially the same, single action.6
In Palmisani, the domestic rule imposed a time limit to claim damages for state
liability for the belated transposition of Council Directive 80/987/EEC of 20 October
1980 on the approximation of the laws of the Member States relating to the protection
of employees in the event of the insolvency of their employer. The applicant suggested
that this time limit was more restrictive compared to limitation periods applicable to
civil non-contractual liability. However, the Court found, taking into account the
purpose and special characteristics of the rules under discussion, that a valid comparison
could only be established if the national rules for civil non-contractual liability could
also be applied to actions against public authorities for unlawful conduct.7
In Transportes Urbanos8 a national time limit applied to the right of taxpayers to
deduct VAT. As taxpayers had to calculate VAT themselves, it was possible to ask the
competent authorities to rectify their calculations within a specific limitation period and
return, where applicable, any overpayments. That time had lapsed before the claimant
asked for damages due to unduly paid VAT in breach of the Sixth Council Directive
77/388/EEC9 as amended by Council Directive 95/7/EC of 10 April 1995.
10 The breach
of the aforementioned EU law by the relevant Spanish national legislation had been
previously established by the Court in Commission v Spain.11
The Court found that the
claimant’s action for damages against the State under EU law was comparable to
domestic actions for damages against the State arising from the incompatibility of
6 B.S. Levez v T.H. Jennings (Harlow Pools) Ltd (n 5) para 48. 7 Case C-261/95 Rosalba Palmisani v Istituto nazionale della previdenza sociale [1997] ECR I-4025,
paras 38-39. 8 Case C-118/08 Transportes Urbanos y Servicios Generales SAL v Administración del Estado [2010]
ECR I-00635. 9 Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member
States relating to turnover taxes – Common system of value added tax: uniform basis of assessment [1977] OJ 1977 L 145/1. 10 Council Directive 95/7/EC of 10 April 1995 amending Directive 77/388/EEC and introducing new
simplification measures with regard to value added tax - scope of certain exemptions and practical
arrangements for implementing them [1995] OJ L102/18. 11 Case C-204/03 Commission of the European Communities v Kingdom of Spain [2005] ECR I-8389.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
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legislation with the Spanish Constitution, which served the same purpose, namely to
secure compensation for the loss suffered by the person harmed as a result of an act or
an omission of the State. Had the violation of legislation been established by the
Spanish Constitutional Court, the lapse of the limitation period for the correction of
self-assessments would have been immaterial, and would not have inhibited the action
for damages against the State.12
Consequently, this time limit could not be upheld for
EU law based claims either.
Once national courts have established the comparable actions to be considered,
they should also compare the national procedural rules applicable to these actions. In
doing so, they should scrutinise the role of the national procedural rule in the entire
procedure, determining its non-discriminatory character based on an objective analysis
and consideration of the function and special features of the national procedural rule
before the various national courts.13
By way of illustration, in Asturcom14
the Court
compared the procedural rules applicable to an EU action for the annulment of
arbitration awards as opposed to those applicable to a similar domestic action. It found
that a national provision giving discretion to courts to consider of their own motion the
compatibility of an arbitration award with national rules of public policy should be
applied for the investigation of the compatibility of an arbitration award with EU rules
having the same status. Based on the nature and importance of the underlying public
interest in the Council Directive 93/13/EEC of 5 April 1993 on unfair terms in
consumer contracts,15
Article 6 of the Directive should be considered as having a public
policy status imposing a duty on national courts to consider, suo motu, the compatibility
of an arbitration award with the said Directive provisions.16
The principle of equivalence only promotes the equality of treatment with regard
to remedies available in a single Member State. As Bobek suggests, undertaking such a
12 Transportes Urbanos y Servicios Generales SAL v Administración del Estado (n 8) paras 42-45. 13 Rosalba Palmisani v Istituto nazionale della previdenza sociale (n 7); B.S. Levez v T.H. Jennings
(Harlow Pools) Ltd (n 5) para 44; Shirley Preston and Others v Wolverhampton Healthcare NHS Trust and Others and Dorothy Fletcher and Others v Midland Bank plc (n 5) para 62. 14 Case C-40/08 Asturcom Telecomunicaciones SL v Cristina Rodríguez Nogueira [2009] ECR I-09579. 15 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts [1993] OJ L 95/29. 16 Asturcom Telecomunicaciones SL v Cristina Rodríguez Nogueira (n 14) paras 52-59.
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comparative activity is virtually impossible for various reasons, mainly due to the lack
of comparable national actions, CJEU’s competence limitations in interpreting national
law, as well as the practical hurdles of limited resources for a valid comparative activity
by CJEU.17
The Court hardly ever performs this comparison, and does so only when the
referring court asks expressly for that and provides the relevant, necessary information
on domestic regimes.18
In addition, it is often suggested that the principle of equivalence
opts for the cohesion of national legal orders, which is scrutinised in each case. In doing
so, it points towards further procedural and remedial diversity across the EU when it
comes to the enforcement of EU law.19
However, this is only partially accurate. The
application of the principles of equivalence and effectiveness is cumulative, in the sense
that it is not enough that national procedural systems treat EU and domestic claims
alike, but also effectively, without rendering the exercise of EU rights particularly
difficult.20
As a result, the principle of equivalence may lead to further procedural
diversity in the EU only where its application could secure a higher standard of rights
protection than what would have been necessary under the principle of effectiveness.21
4.2.2 Interpreting the principle of effectiveness
Unlike the principle of equivalence, the requirement of effectiveness addresses
the differing levels of judicial protection applied across the various Member States.
17 M Bobek, ‘Why There is no principle of “procedural autonomy” of the member states’ in H W Micklitz
and B de Witte (eds), The European Court of Justice and the Autonomy of the Member States (Intersentia
2012) 305. See also, C M G Himsworth, ‘Things Fall Apart: the Harmonisation of Community Judicial
Procedural Protection Revisited’ (1997) 22(4) ELR 295, 309. 18 See inter alia: case 199/82 Amministrazione delle Finanze dello Stato v SpA San Giorgio [1983] ECR
3595, Opinion of AG Mancini, para 11; case C-62/93 BP Soupergaz Anonimos Etairia Geniki Emporiki-
Viomichaniki kai Antiprossopeion v Greek State [1995] ECR I-1883, Opinion of AG Jacobs, paras 58-60;
case C-261/95 Rosalba Palmisani v Istituto nazionale della previdenza sociale [1997] ECR I-4025,
Opinion of AG Cosmas, paras 25-38; case C-326/96 B.S. Levez v T.H. Jennings (Harlow Pools) Ltd.
[1998] ECR I-7835, Opinion of AG Léger, paras 26-79; Shirley Preston and Others v Wolverhampton
Healthcare NHS Trust and Others and Dorothy Fletcher and Others v Midland Bank plc (n 5) para 57;
Transportes Urbanos y Servicios Generales SAL v Administración del Estado (n 12) paras 33-48. 19 J Engström, The Europeanisation of Remedies and Procedures through Judge-made Law: Can a
Trojan Horse achieve Effectiveness? Experiences of the Swedish Judiciary (PhD Thesis, European
University Institute 2009) 55-56; Bobek (n 17). 20 See for instance, Amministrazione delle Finanze dello Stato v SpA San Giorgio (n 18). For the opposite
opinion, namely that the relation between effectiveness and equivalence is of ‘inclusive disjunction’ see:
Bobek (n 17). 21 See, Asturcom Telecomunicaciones SL v Cristina Rodríguez Nogueira (n 16) para 47. See also,
Engström (n 19) 58-59.
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Accordingly, national procedural conditions should not be framed in such a way that
they render the enforcement of EU rights and obligations impossible in practice or
excessively difficult (principle of effectiveness).22
This principle does not necessarily
always result in setting aside national procedural rules.23
In the absence of EU
provisions harmonising procedural rules, Member States’ primacy to provide procedural
rules for the enforcement of EU rights does not extend to the introduction of new
remedies in national legal orders to ensure the applicability of EU law.24
Nevertheless,
every type of remedy available under domestic law must also always be made available
for EU law provisions; the conditions of admissibility and procedure of these national
remedies should be appropriately expanded and modified for the effective enforcement
of EU law rights and obligations. The line between the creation of new remedies and the
modification of existing ones is a thin one. This will become apparent in the analysis of
the CJEU case law on diverse national remedial and procedural provisions in the
remainder of this section. More importantly, this analysis will shed some light on the
justification for EU intervention in national regimes, be it via the setting aside or the
modification of existing rules.
4.2.2.1 Limitation periods and retrospective claims
In a set of cases, the CJEU has reviewed various national procedural rules on
limitation periods. In doing so, the Court has undertaken a balancing activity in order to
identify the national procedural and remedial rules that impede the effective
enforcement of EU law rights and obligations. Using as a yardstick the right of access to
22 Case 33-76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland
[1976] ECR 01989, para 5. 23 M Dougan, ‘Enforcing the Single Market: The Judicial Harmonisation of National Remedies and
Procedural Rules’ in C Barnard and J Scott (eds), The Legal Foundations of the Single Market:
Unpacking the Premises (Hart Publishing 2002) 172; S Prechal and N Shelkoplyas, ‘National Procedures,
Public Policy and EC Law. From Van Schijndel to Eco Swiss and Beyond’ (2004) 5 E.R.P.L. 589. 24 Case 158/80 Rewe-Handelsgesellschaft Nord mbH and Rewe-Markt Steffen v Hauptzollamt Kiel [1981]
ECR 01805, para 44. The CJEU was asked whether a trader, whose activities are protected by the EU policy on common customs tariff, had the right to require German authorities to apply import duties to his
third party competitors and whether he could rely on that right in proceedings before the German courts
against these competitors. See also, joined cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v
Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd
and others [1996] ECR I-01029.
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justice and, particularly the right of access to courts,25
the Court has examined national
procedural rules imposing limitation periods for the institution of court proceedings or
for the retroactive effect of certain claims based on EU law rights and obligations,
investigating whether these limitations pursue a legitimate aim in a proportional
fashion.26
Therefore, where the limitations erode the essence of the right of access to
courts, rendering practically impossible the enforcement of the relevant EU law right or
obligation, the Court has intervened in the national legal order, setting aside the national
rule,27
amending it,28
or even creating a new rule of procedure.29
Specifically, in the seminal case Rewe v Landwirtschaftskammer Saarland,30
a
claim was made for the repayment (with interest) of charges having an effect equivalent
to custom duties within the meaning of Article 13(2) EEC (later repealed). The
Agricultural Chamber for the Saar recognised the unlawful character of the charges, but
returned that the appellants did not qualify for a refund since the time limits for
contesting the validity of administrative acts specified by national law31
had elapsed. On
a reference for a preliminary ruling, the CJEU established the principle of national
procedural autonomy, subjecting it to the principles of equivalence and effectiveness.32
Accordingly, the Court found that the German procedural rule on time limits did not
render the pursuance of EU rights impossible in practice. It laid down reasonable time
frames for contesting the administrative act imposing charges to the litigants in breach
25 See text, case law, and references above, ‘2.3.2.1 The requirement for access to the courts’ 58.
According to Prechal and Widdershoven time limits should be dealt with by the court under the principle of effective judicial protection as impinging on the right of access to courts in: S Prechal and R
Widdershoven, ‘Redefining the Relationship between ‘Rewe-effectiveness’ and Effective Judicial
Protection’ (2011) 4(2) REALaw 31, 48. 26 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland (n 22). 27 Case C-246/96 Mary Teresa Magorrian and Irene Patricia Cunningham v Eastern Health and Social
Services Board and Department of Health and Social Services [1997] ECR I-07153, para 47. 28 Case C-208/90 Theresa Emmott v Minister for Social Welfare and Attorney General [1991] ECR I-
04269, para 24: the two year limitation cannot start running prior to the implementation of the relevant
Directive. 29 Shirley Preston and Others v Wolverhampton Healthcare NHS Trust and Others and Dorothy Fletcher
and Others v Midland Bank plc (n 5) paras 69-70. 30 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland (n 22) para 5. 31 Code of Procedure before the Administrative Courts, Article 58. 32 See also: case 45/76 Comet v Produktschap voor Siergewassen [1976] ECR 2043, para 13; Piercarlo
Bozzetti v Invernizzi SpA and Ministero del Tesoro (n 2); Hans Just I/S v Danish Ministry for Fiscal
Affairs (n 2) para 25; Andrea Francovich and Danila Bonifaci and others v Italian Republic (n 2) para 42.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
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of EU law. What is more, these time limits were the same for domestic and EU law
violations. Adding that the existence of reasonable time limits can contribute to legal
certainty for both the taxpayers and the administration, the Court upheld the German
procedural rule.33
In contrast, in Preston34
the Court found that considerations of legal certainty
could not justify the national procedural rules asking employees to raise claims
concerning membership of an occupational pension scheme within six months after the
termination of the employment contract. Where there was a practice to employ the same
person for the same employer periodically or intermittently, under successive legally
separate contracts, such a time restriction was disproportionate to the demand for legal
certainty as to the point of termination of the employment relationship.35
Access to the
courts for the enforcement of the right to equal pay would require many distinct claims
before the courts, which would unnecessarily inconvenience the prospective litigants,
also putting a burden on the judicial system. As a result, CJEU offered alternative
starting points of the limitation period for the institution of proceedings based on claims
for membership in an occupational scheme. Specifically, the Court suggested that one
should look for the cessation of one of the basic features of a stable employment
relationship, namely, either the lack of periodicity, or the signature of a contract that
does not relate to the same employment as the one to which a specific pension scheme
applies.36
In addition, where applicants base their EU rights on a specific directive,
national limitation periods for bringing proceedings could start to run only as from the
date of the proper implementation of that directive in the Member State; this was
33 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland (n 22). See
also: Rosalba Palmisani v Istituto nazionale della previdenza sociale (n 7) para 25 (one year limitation
period in damages claims); Case C-312/93 Peterbroeck, Van Campenhout & Cie SCS v Belgian State [1995] ECR I-04599, para 16 (60-day period to lodge an appeal). 34 Shirley Preston and Others v Wolverhampton Healthcare NHS Trust and Others and Dorothy Fletcher
and Others v Midland Bank plc (n 5). 35 Ibid, paras 68-72. 36 Ibid, 69-70.
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established in the Emmott case.37
Ireland had failed to implement Directive 79/738
containing a prohibition against discrimination on the grounds of sex. An Irish married
female citizen, receiving lower disability benefit compared to that provided to married
men, applied for judicial review in order to recover the benefits to which she claimed to
be entitled as of the 23 December 1984, the date by which the above directive should
have been incorporated in Ireland’s domestic legal order. However, the Irish Minister of
Social Welfare responded that the proceedings were out of time according to a national
procedural rule limiting the period to apply for judicial review.39
The Court found that
under the specific circumstances of the case,40
the defaulting State could not rely on an
individual’s delay in initiating proceedings against that State to secure the rights he/she
derives from a directive that was not implemented within the proper deadline. National
procedural rules on time limits cannot be applied prior to the implementation of the
respective directives, regardless of how long ago these directives should have been
incorporated into national law.41
Otherwise, the right of access to courts for judicial
review would become illusory and the EU law right provision superfluous.42
The situation is different where national procedural rules impose a limitation on
the backdating of financial claims. National time limits restricting the period for which
arrears of a social benefit (e.g. benefit for incapacity to work) should be paid are
acceptable, even if a directive creating that right to arrears has not been properly
implemented in that Member State.43
For instance, to the extent that private national
rules simply restrict the period for which arrears of benefits should be paid,44
promoting
legal certainty within Member States’ legal orders, without limiting disproportionately
37 Theresa Emmott v Minister for Social Welfare and Attorney General (n 28). 38 Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle
of equal treatment for men and women in matters of social security [1979] OJ L 6/24. 39 Order 84, Rule 21(1), of the Rules of the Superior Courts 1986. 40 Theresa Emmott v Minister for Social Welfare and Attorney General (n 28) para 17. 41 Ibid, paras 21-23. 42 In a different, public law setting and in disputes between Member States and the EU Institutions, see: case C-336/09 P Republic of Poland v European Commission [2012] OJ C 258/2. 43 Case C-338/91 H. Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel,
Ambachten en Huisvrouwen [1993] ECR I-05475; case C-410/92 Elsie Rita Johnson v Chief Adjudication
Officer [1994] ECR I-5483. 44 Elsie Rita Johnson v Chief Adjudication Officer (n 43) para 30.
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the right of access to courts,45
these time limits can be upheld. In the Steenhorst-
Neerings and Johnson cases, considerations of preserving the financial balance of the
social security system and checking the annually modified eligibility conditions for
social benefits justified the limitation of the temporal scope of the relevant EU right to
social benefits.46
In extreme scenarios, national time limits could result in absolute deprivation of
the litigants’ right to equal treatment in social security. In these cases, the right of access
to courts is totally negated since practically the litigant cannot lodge a complaint for the
enforcement of his EU law right. In the Magorrian case,47
a national rule limited the
right to be admitted to an occupational scheme (a voluntary contracted-out pension
scheme) to two years prior to the initiation of proceedings. Such a national provision
resulted in the applicants being denied additional pension benefits for the entire period
between 1976, the year they were first admitted to the scheme, and 1990, that is, two
years before the commencement of proceedings for backdated benefits. Such a national
limitation period is disproportionate to any considerations of legal certainty of the
domestic legal order as it restricts claims for future pension benefits essentially
dependent on past service. Such temporal limitations result in the erosion of the core of
the relevant EU substantive right, taking away any chance for effective remedy when
these EU rights have been violated.48
4.2.2.2 Compensation and the payment of interest
The EU legal order is integrated into Member States’ legal systems, requiring
national courts to uphold EU rules affecting both States and their nationals. It is often
the case that prior State action is necessary for individuals to be able to reap the full
benefit of their EU rights. CJEU managed to intervene in Member States’ domestic
45 Case C-188/95 Fantask A/S e.a. v Industriministeriet (Erhvervministeriet) [1997] ECR I-6783, Opinion
of AG Jacobs, paras 48-52, 72. 46 The national procedural law in cases H. Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor
Detailhandel, Ambachten en Huisvrouwen (n 43) and Elsie Rita Johnson v Chief Adjudication Officer (n 43) set a time limit of 12 months prior to the initiation of the claim for the payment of arrears of benefits.
See also, Fantask A/S e.a. v Industriministeriet (Erhvervministeriet) (n 45) para 74. 47 Mary Teresa Magorrian and Irene Patricia Cunningham v Eastern Health and Social Services Board
and Department of Health and Social Services (n 27). 48 Ibid, paras 37-47.
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procedural regimes to secure compliance with EU law obligations, imposing a new
remedy - that of reparation for losses related to state liability due to violation of EU
laws.49
By establishing the constitutive conditions of the state liability, the Court created
a remedy to be available in all Member States. The necessity for this new remedy
derived from the fundamental right of access to justice, and more specifically the need
for an effective remedy in case of violation of EU law rights and obligations. This is
particularly evident in cases of EU law rights and obligations with no direct effect, for
which no national remedies can be used.50
Specifically, CJEU found in Francovich and Bonifaci that Italian courts were
under the duty to offer effective redress to the plaintiffs, awarding them damages for the
loss suffered due to Italy’s breaching their EU rights by failing to implement Directive
80/98751
on the Protection of Employees in the event of their Employers' Insolvency.52
State liability is inherent in the system of the Treaty and the EU legal order53
provided
that three constitutive conditions are fulfilled; namely, the result required by the
directive includes the conferral of rights to individuals, the content of which can be
discernible by reference to the provisions of the said directive, and there is causal link
between the breach of Member States’ duty to implement the said directive and the loss
or damage suffered by the individual.54
49 T Tridimas, The General Principles of EU Law (2nd edn, OUP 2006) 529; E Szyszczak, ‘European Community Law: new remedies, new directions?’ (1992) 55(5) MLR 690, 696. 50 J Steiner, ‘From direct effects to Francovich: shifting means of enforcement of Community law’ (1993)
18(1) ELR 3. 51 Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the Member
States relating to the protection of employees in the event of the insolvency of their employer [1980] OJ
L283/23. 52 Andrea Francovich and Danila Bonifaci and others v Italian Republic (n 2) paras 33-34: Italy did not
take any steps to implement Directive 80/987/EEC, and in February 1989 the CJEU verified via Article
169 EC (now 258 TFEU) infringement proceedings that Italy had failed to fulfil its obligations in this
respect. Two years later, the plaintiffs sued their insolvent former companies and the State, for arrears of
salary, seeking payment or compensation. See also, case 26-62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 1; Brasserie
du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex
parte: Factortame Ltd and others (n 24). 53 Andrea Francovich and Danila Bonifaci and others v Italian Republic (n 2) paras 35-37. 54 Ibid, paras 39-40.
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Similarly, individuals’ EU rights may be breached by an action of any organ of
the Member State, such as the introduction or the maintenance of domestic legislation
violating the said EU rights.55
A remedy for damages to the individual that suffered loss
or damage due to that act should be available.56
Under international law, States
constitute single entities with regard to breaches of their international commitments.
Consequently, this principle must apply a fortiori in the EU legal order since all State
authorities, including the judiciary, the executive, and the legislative, should conform to
EU law.57
Finally, provided that the breach of the EU rule is sufficiently serious, the right
to damages should be offered to individuals, even if the said EU rule has direct effect,
with damages constituting the ‘necessary corollary’ rather than a substitute for direct
effect.58
To this end, the following parameters should be considered for the award of
damages: the clarity of the EU rule;59
the discretion left to public authorities; the
intentional or involuntary damage caused; and, the infiltration of an excusable or
inexcusable error of law.60
55 Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for
Transport, ex parte: Factortame Ltd and others (n 24). 56 Ibid, para 32. 57 Case 222/84 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR
01651, para 32. 58 Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others (n 24) paras 22 and 55. See also: A Komninos, ‘New
Prospects for the Enforcement of EC Competition Law: Courage v Crehan and the Community Right to
Damages’ (2002) 39 CML Rev. 455; J Steiner, ‘The Limits of State Liability for Breach of European
Community Law’ (1998) 4(1) EPL 69, 74. See however: case C-5/94 The Queen v Ministry of
Agriculture, Fisheries and Food, ex parte: Hedley Lomas (Ireland) Ltd [1996] I-02553; joined cases C-
178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Erich Dillenkofer, Christian Erdmann, Hans-
Jürgen Schulte, Anke Heuer, Werner, Ursula and Trosten Knor v Bundesrepublik Deutschland [1996]
ECR I-04845: the culpability test applied was more lax due to the lack of legislative action and
subsequently wide discretion on the part of the Member States. 59 See, case C-392/93 The Queen v H. M. Treasury, ex parte British Telecommunications plc [1996] ECR
I-01631, paras 42-45. 60 Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for
Transport, ex parte: Factortame Ltd and others (n 24) paras 56-57. See also: case 5/71 Aktien-
Zuckerfabrik Schöppenstedt v Council of the European Communities [1971] ECR 00975, para 11; joined
cases C-283/94, C-291/94 and C-292/94 Denkavit International BV, VITIC Amsterdam BV and Voormeer
BV v Bundesamt für Finanzen [1996] ECR I-05063.
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In Köbler, the Court opened the way for the recognition of a right to reparation
against the State in case of breach of EU law rights by the national judiciary;61
rulings
of last instance courts no longer constitute the final litigation step. Individuals can turn
to lower national courts for the award of reparation for losses suffered as a result of
breach of EU law by the higher national court.62
Article 41 ECHR also recognises state
liability; there is a right to reparation when the infringement of the ECHR is attributable
to a national court of last instance.63
Subjecting last instance courts’ rulings to further
judicial review does not jeopardise judicial authority. On the contrary, it enhances the
quality of the EU legal system and of judicial control;64
CJEU and national courts of last
instance are indispensable constituents of the single EU legal order. There is a
hierarchical rather than co-operational relationship between these courts, whereby the
final decision of whether the national judiciary has breached EU law is one for the
CJEU to make.65
Nonetheless, the Court left the executive conditions for the exercise of the
relevant remedy before national courts to Member States’ domestic procedural regimes
provided these conform to the principles of equivalence and effectiveness.66
In that
sense, a German remedial rule providing that when the legislature adopts a law that
61 Case C-224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239: Mr Köbler brought an
action for damages before the Regional Court of Vienna on grounds of breach of EU law by the Austrian
Supreme Court. 62 Tridimas, The General Principles of EU Law (n 49) 525. It is often suggested that Köbler has promoted
greater dispersal of judicial power at national level. However, it would be against Articles 6 ECHR and 47 CFREU (requirement of fair trial and impartiality of the tribunal or court) to have the higher court that
has issued the litigated decision for which reparation is being asked from a lower court at first instance, to
be adjudicating the case in appeal proceedings. See also: case C-185/95 P. Baustahlgewebe GmbH v
Commission of the European Communities [1998] ECR I-08417, Opinion of AG Léger, para 67; case C-
224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239, Opinion of AG Léger, para 111-112;
G Anagnostaras, ‘The Principle of State Liability for Judicial Breaches: The Impact of European
Community Law’ (2001) 7(2) EPL 281. 63 See also, Dulaurans v. France App no 34553/97 (ECtHR, 21 March 2000). 64 Gerhard Köbler v Republik Österreich (n 61) para 43. 65 See to the same effect: case C-173/03 Traghetti del Mediterraneo SpA v Italy [2006] ECR I-5177:
CJEU condemned Italian legislation substantially restricting state liability for damage caused by a last instance court. 66 See: case 60-75 Carmine Antonio Russo v Azienda di Stato per gli interventi sul mercato agricolo
(AIMA) [1976] ECR 00045; Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für
das Saarland (n 22); Rewe-Handelsgesellschaft Nord mbH and Rewe-Markt Steffen v Hauptzollamt Kiel
(n 24).
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conflicts with a higher-ranking law, such as EU law, only the individuals to whom the
legislative act or omission refers can have a right to reparation, contradicts the
fundamental right of access to justice.67
Although restrictions to the right of standing of
would-be litigants are acceptable provided they pursue a legitimate aim in a
proportional manner, these restrictions cannot be upheld, if they are too wide, eroding
the essence of the right to an effective remedy. Along these lines, a limitation of the
right to reparation only to individuals to whom a legislative act refers renders reparation
extremely difficult, since legislative acts are usually directed to the public and not to
identifiable people or groups of people.68
In addition, in a set of cases for the reimbursement of charges levied in breach of
EU law, the Court opined that – in light of the substantive EU provision prohibiting
charges having an effect equivalent to customs duties – in principle a right to
reimbursement must be available under national law. Nevertheless, secondary issues to
reimbursement, such as the payment of interest, are to be defined by the national
procedural law.69
That being said, judging the national remedy of compensation payable
to victims of sex discrimination, the Court held that fixing a priori upper limits to the
amount of compensation that can be awarded for these cases could not secure adequate
reparation for the loss and damage suffered due to discriminatory dismissal from a
67 Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others (n 24) paras 69-72. 68 In the ECHR context, see: Golder v. United Kingdom App no 4451/70 (ECtHR, 21 February 1975),
para 35; Chevrol v. France App no 49636/99 (ECtHR, 13 February 2003); Ashingdane v. United
Kingdom App no 8225/78 (ECtHR, 28 May 1985), paras 111-113. 69 Case 199/82 Amministrazione delle Finanze dello Stato v SpA San Giorgio [1983] ECR 03595, para 12;
case 26-74 Société Roquette frères v Commission of the European Communities [1976] ECR 00677; case
130/79 Express Dairy Foods Limited v Intervention Board for Agricultural Produce [1980] ECR 01887.
para 12. See also: case 265/78 H. Ferwerda BV v Produktschap voor Vee en Vlees [1980] ECR 00617,
para 10; joint cases 66, 127 and 128/79 Amministrazione delle Finanze v Srl Meridionale Industria
Salumi, Fratelli Vasanelli and Fratelli Ultrocchi [1980] ECR 01237, para 18; case 54/81 Firma Wilhelm
Fromme v Bundesanstalt für landwirtschaftliche Marktordnung [1982] ECR 01449; joined cases 205 to 215/82 Deutsche Milchkontor GmbH and others v Federal Republic of Germany [1983] ECR 02633; case
39-70 Norddeutsches Vieh- und Fleischkontor GmbH v Hauptzollamt Hamburg-St. Annen [1971] ECR
00049, para 4: here the CJEU explicitly suggested that no recourse to national rules should take place
except to the extent necessary to carry out EU law provisions. See, Kakouris, ‘Do the Member States
possess Judicial Procedural Autonomy?’ (n 3) 1395-1396.
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job.70
Such national remedial rules must be set aside, and full compensation must be
provided to people whose EU right to real equality of opportunity (according to
Directive 76/207) has been violated. Such full compensation must take into account
losses due to the passing of time, awarding interest, where necessary.71
Similarly, in Marshall II, the award of interest was held as an indispensable part
of the effective judicial protection of EU rights.72
It is only the calculation of that
interest that is left to the national procedural rules. This is consistent with the right to an
effective remedy as established in Article 47(1) CFREU and its Strasbourg counterpart
Article 13 ECHR. Both the procedural characteristics of a specific remedy as well as its
capacity to offer adequate relief for the violation of the EU right should be considered
for the right to effective access to justice to be ensured.73
Consequently, setting fixed
compensation limits regardless of the loss suffered and of the allegedly violated EU
provision cannot be deemed adequate relief.74
It is difficult to justify the Court’s stance in the ex Sutton case75
where the
payment of interest was said to be dependent on the compensatory or restitutionary
character of the EU law originated claim. The requirement to pay interest, following
from the right to an effective remedy, seeks to guarantee that the pecuniary relief
offered is adequate to render good the violation of the EU right. This is probably the
reason why the Court left open the possibility to be awarded interest for the passage of
time on the basis of further actions for damages due to state liability.76
Accordingly,
national procedural rules excluding the loss of profit as a head of damage for which
70 Case C-271/91 Marshall v Southampton and South-West Hampshire AHA [1993] ECR I-4367, para 30. 71 Ibid, para 31. See also, case C-63/01 Samuel Sidney Evans v The Secretary of State for the
Environment, Transport and the Regions and The Motor Insurers' Bureau [2003] ECR I-14447, paras 70-
71. 72 Marshall v Southampton and South-West Hampshire AHA (n 70) para 31. To the same effect: case C-
63/01 Samuel Sidney Evans v The Secretary of State for the Environment, Transport and the Regions and
The Motor Insurers' Bureau [2003] ECR I-14447, Opinion of AG Alber, para 45: ‘interest does indeed
form part of a claim for compensation’. 73 See above, ‘2.3.1.2 The obligation to provide an ‘effective’ remedy’ 56. 74 Ibid. 75 Case C-66/95 The Queen v Secretary of State for Social Security, ex parte Eunice Sutton [1997] ECR I-
02163. 76 Ibid, paras 23 and 35.
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reparation can be granted in case of breach of EU law cannot be accepted. Especially in
the area of commercial litigation, this rule could render the reparation of damage
practically impossible.77
Similarly, the award of exemplary damages for breach of EU
law should be available if such damages are awarded for claims founded on domestic
law.78
In the aftermath of Francovich and Brasserie du Pêcheur and Factortame, the
Court further expanded the remedy of reparation to include private parties’ liability for
breach of EU law in the area of EU competition law, thus imposing obligations on non-
state entities. Advocate General van Gerven first raised this point in the Banks case;79
where an individual violates EU law, causing damages to another person, there should
be a remedy for reparation for the loss suffered.80
It was then in Courage Ltd v Crehan81
that the Court took position on that issue. Courage, a brewery holding a 19% share of
the United Kingdom market in sales of beer, concluded two 20-year-leases for the use
of public houses with Inntrepreneur Estates Ltd. The lease agreements contained an
exclusive purchase obligation under which the lessee had to purchase a fixed minimum
quantity of beer from the lessor. In an action brought by the lessor to recover unpaid
deliveries of beers, the lessee argued that the agreement was contrary to Article 81 EC
(now Article 101 TFEU), counter-claiming damages. However, according to English
law, a party to an illegal contract cannot claim damages from the other party to the
contract. The CJEU suggested that the common law rule could not be upheld, as that
would jeopardise the effective application of Article 101 TFEU.82
It found that there is a
right to a civil remedy in private relationships inherent in the EU legal order.83
77 Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for
Transport, ex parte: Factortame Ltd and others (n 24) para 87. 78 Ibid, para 89. 79 Case C-128/92 H. J. Banks & Co. Ltd v British Coal Corporation [1994] ECR I-1209. 80 Ibid, Opinion of AG Van Gerven, para 43. 81 Case C-453/99 Courage Ltd v Bernard Crehan and Bernard Crehan v Courage Ltd and Others [2001]
ECR I-6297. 82 Ibid, para 26. 83 Ibid; Tridimas, The General Principles of EU Law (n 49) 546. See also, Dougan, ‘Enforcing the Single
Market: The Judicial Harmonisation of National Remedies and Procedural Rules’ (n 23) 175-177.
Subsequent academic literature has argued that individual liability should be expanded to other areas of
EU law, imposing similar directly effective obligations of non-violation to other individuals as those
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Moreover, in Muñoz it found that this right is also existent where Union
provisions impose obligations on a private party, giving rise to implied rights of action
to individuals adversely affected by the failure of another individual to comply with EU
obligations.84
Since such a remedy needs to be effective, it might lead to a right to
injunctive relief or to reparation based on the circumstances of the violation.
Additionally, the potential pool of beneficiaries is considerably wide, ranging from
consumers and employees to representative associations and trade unions.85
After all,
enforcement refers to the entire paradigm of judicial procedure: this includes not only
issues of standing, time limits, appropriate forms of action, but also preliminary issues
of access to justice.86
4.2.2.3 Interim relief
EU intervention in national procedural and remedial regimes for the purposes of
guaranteeing the effective enforcement of EU law rights and obligations reached its
apogee in a set of cases on interim measures. CJEU has found that individuals have the
right to be awarded interim relief to protect their position while their EU law
rights/obligations are being clarified.87
The effective enforcement of EU law could be
impaired if a rule of national law could prevent a court from granting interim relief.
Even if, under domestic law, national courts have no power to award interim relief and
[Footnotes continued on next page]
introduced by the competition provisions of Articles 101 and 102 TFEU. This is the case of Article 45
TFEU on the freedom of movement for workers, Article 56 TFEU on the freedom of services, and Article 157 TFEU on the principle of equal pay between men and women. See inter alia: W van Gerven, ‘Crehan
and the Way Ahead’ (2006) 17 EBLR 269; S Drake, ‘Scope of Courage and the principle of "individual
liability" for damages: further development of the principle of effective judicial protection by the Court of
Justice’ (2006) 31(6) ELR 841. 84 Case C-253/00 Antonio Muñoz y Cia SA and Superior Fruiticola SA v Frumar Ltd and Redbridge
Produce Marketing Ltd [2002] ECR I-7289. 85 On the distinction between EU law rights and EU law obligations and its impact on national procedural
autonomy see, inter alia: Van Gerven, ‘Crehan and the Way Ahead’ (n 83). 86 Brown (n 4) 70. 87 Case C-213/89 The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others
[1990] ECR I-02433: British companies whose directors and shareholders were mostly Spanish nationals, challenged the Merchant Shipping Act 1988 that changed the registration system for the British fishing
vessels on the ground that the 1988 Act was incompatible with various provisions of EU law, asking for
an interim relief to be issued until the final judgment. The House of Lords recognised that the appellants
would suffer irreparable damage if interim relief were refused; also explaining that issuing interim relief
against the Crown was prohibited by national law.
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this holds true for national and EU law related disputes, this remedy should still be
made available to individuals when it comes to the legal protection of their EU rights.88
The requirement for availability of interim relief derives from the right to an effective
remedy, ensuring the enforceability of the final court judgment and through that the
effective enforcement of EU law rights or obligations under discussion, preventing a
Pyrrhic victory for the applicant.89
Where the existence and enforcement of an EU law right is raised before a
national court, and a reference for a preliminary ruling is submitted according to Article
267 TFEU, it will be too long a period of time before CJEU will be able to rule on the
existence and enforcement of that EU right. Consequently, it will also be a long time
before the national court will be able to deliver its decision on the merits of the case.
During this time, the applicant may suffer irreparable damage, rendering completely
worthless and void of any practical value its recourse to justice in the first place.90
Interim relief constitutes a ‘fundamental and indispensable instrument of any judicial
system’ which does not wish to have an irreversible effect on the effective enforcement
of a private right by its beneficiary.91
The right of individuals to be awarded interim relief to protect their position
while their EU law rights are being clarified was upheld in Factortame.92
In that case,
the House of Lords recognised that the appellants would suffer irreparable damage if
interim relief was refused, but it explained that issuing interim relief against the Crown
was prohibited by national law. The CJEU ruled that when the sole obstacle to the
88 Ibid, para 21. 89 See text, case law, and references above, ‘2.3.1.2 The obligation to provide an ‘effective’ remedy’ 56. 90 S A Apter, ‘Interim Measures in EC Law: Towards a Complete and Autonomous System of Provisional
Judicial Protection before National Courts?’ (2003) 7 EJCL http://www.ejcl.org/72/art72-1.html accessed
25 March 2013. 91 Case C-213/89 The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others
[1990] ECR I-02433, Opinion of AG Tesauro, para 19. See also, G Anagnostaras, ‘The incomplete state
of Community harmonisation in the provision of interim protection by the national courts’ (2008) 33(4)
ELR 586-597. 92 The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others (n 87).
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award of interim relief and to the subsequent effective enforcement of EU rights and
obligations is only a national rule, this rule should be set aside.93
In addition, the Court established in Zuckerfabrik that national courts should
make available the remedy of interim relief not only where they are asked to suspend
the enforcement of a national measure adopted in breach of EU law, but also in case of
secondary EU provisions, held to be invalid.94
In the latter case, national courts should
look at the following four cumulative criteria to decide whether temporary suspension
of national rules implementing EU law should actually be awarded in the case before
them.95
Firstly, national courts must have serious doubts on the validity of EU
secondary law. Secondly, they must refer this validity question to the CJEU asking for a
preliminary ruling under Article 267 TFEU. Thirdly, there must be an urgent situation,
capable of inflicting serious and irreparable damage to the applicants. Lastly, national
courts must also take due regard of the Union interests.96
That being said, domestic rules on interim relief should be applicable where the
suspension of a national law on grounds of alleged incompatibility with EU law is
requested. Following the principle of procedural autonomy, these rules should respect
both the principle of equivalence and that of effectiveness.97
Nevertheless, it is clear that
such an approach would lead to differential outcomes from one Member State to
another resulting in the same EU rule receiving different scope and interpretation
depending on whose states’ domestic rules of interim relief have been applied.98
93 Ibid, para 23. 94 Joined cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe and
Zuckerfabrik Soest GmbH v Hauptzollamt Paderborn [1991] ECR I-00415, para 20: it seems that the
CJEU views national rules and EU provisions as indispensable parts of the same legal order, the EU legal
order. See also: case C-465/93 Atlanta Fruchthandelgesellschaft mbH nad other v Bundesamt für
Ernährung und Forstwirtschaft [1995] ECR I-3781; A Arnull, The European Union and its Court of
Justice (OUP 2006) 294. 95 E Sharpston, ‘Interim Relief in the National Courts’ in J Lonbay and A Biondi (eds), Remedies for
Breach of EC Law (John Wiley & Sons 1997) 48-50; case C-432/05 Unibet (London) Ltd and Unibet (International) Ltd v Justitiekanslern [2007] ECR-I-2271, Opinion of AG Sharpston: it is only the EU
that has the competence to declare EU rules unlawful. 96 See: Delicostopoulos (n 3) 608; Apter (n 90). 97 Unibet (London) Ltd and Unibet (International) Ltd v Justitiekanslern (n 95) para 93. 98 See also, A Arnull, ‘Case Law’ (2007) 44 CML Rev. 1778.
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4.2.2.4 Evidentiary rules and the duty to raise EU points of law ex officio.
In San Giorgio, the Court held that the Italian national rules of evidence,
requiring negative written proof, should be put aside since they systematically placed
the burden of proof upon the taxpayer to establish that the unlawfully imposed charge
had not been passed on.99
Even if the national evidentiary rule results in the same level
of judicial protection with regard to taxpayers’ claims arising from an infringement in
national tax law, this rule cannot be upheld if it renders the reparation of charges levied
contrary to EU law excessively difficult, and the relevant remedy practically
ineffective.100
Similarly, national procedural rules, establishing evidential presumptions that
unlawfully imposed charges had been passed on, cannot be accepted under the principle
of effectiveness. Such national provisions deprive the litigant of the opportunity to
prove that the situation is different, also rendering impossible the reimbursement of
these charges, inhibiting the enforcement of the relevant EU law right.101
Even de facto
evidential presumptions, resulting from the practice of the judiciary102
or the
administrative authorities,103
are unacceptable since at the end of the day they have the
same restricting effect on the remedy of reimbursement of unlawful charges levied
contrary to EU law.104
The Court has found that the principle of effectiveness does not always impose a
duty on national courts to raise a plea based on a Union provision of their own motion.
This will depend on the importance of the Union provision for the supranational legal
order, and on the parties’ genuine opportunity to raise a plea based on Union law before
99 Amministrazione delle Finanze dello Stato v SpA San Giorgio (n 69) para 18. 100 Ibid, para 17; case C-400/93 Specialarbejderforbundet i Danmark v Dansk Industri, formerly
Industriens Arbejdsgivere, acting for Royal Copenhagen A/S [1995] ECR I-01275, para 24;case C-242/95
GT-Link A/S v De Danske Statsbaner (DSB) [1997] ECR I-04449, paras 22-27; Hans Just I/S v Danish
Ministry for Fiscal Affairs (n 2) para 15. 101 Joined cases C-192/95 to C-218/95 Société Comateb and Others v Directeur général des douanes et
droits indirects [1997] ECR I-165, paras 25-26. See also the text, case law, and references above, ‘2.3.1.2
The obligation to provide an ‘effective’ remedy’ 56. 102 Case C-129/00 Commission of the European Communities v Italian Republic [2003] ECR I-14637,
paras 32-33. 103 Case C-343/96 Dilexport Srl v Amministrazione delle Finanze dello Stato [1999] ECR I-00579. 104 Case C-147/01 Weber's Wine World Handels-GmbH and Others v Abgabenberufungskommission
Wien [2003] ECR I-11365, paras 113-114.
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a national court.105
More importantly, a national rule that limits the capacity of the
Supreme Court to raise issues of EU law suo motu can be justified by the adversarial
character of the domestic judicial system. The adversarial character of civil proceedings
depicts a principle regarding the relations between the State and the individual that is
prevalent in many Member States and the EU,106
furthering the rights of the defence, as
well as the requirement for reasonable length of the proceedings,107
which are inherent
in the EU fundamental right of access to justice.108
Specifically, in Kraaijeveld, the Court suggested that parties to civil suits are
responsible for presenting to the court all facts and pieces of evidence, with the court
being responsible to intervene only in exceptional cases when the public interest
demands so and to the extent that this is necessary to ensure effective judicial protection
of EU rights.109
Accordingly, the possibility for a national court to annul arbitration
awards in case of failure to observe EU rules of public policy, such as Article 81 EC
(101 TFEU), should be open.110
Even if the applicant did not raise the EU right point of
law during the arbitration proceedings, the national court reviewing the arbitral award
must consider suo motu the enforcement of Article 101 TFEU regarding competition in
the Internal Market.111
This is the more necessary taking into account the incapacity of
arbitral tribunals to lodge a reference for a preliminary ruling regarding the EU law right
105 Joined cases C-222/05 to C-225/05 J. van der Weerd and Others v Minister van Landbouw, Natuur en
Voedselkwaliteit [2007] ECR I-4233, Opinion of AG Maduro, para 29. 106 Joined cases C-430/93 and C-431/93 Jeroen van Schijndel and Johannes Nicolaas Cornelis van Veen v Stichting Pensioenfonds voor Fysiotherapeuten [1995] ECR I-04705, para 21. See also, Kakouris, ‘Do the
Member States possess Judicial Procedural Autonomy?’ (n 3) 1404. 107 Jeroen van Schijndel and Johannes Nicolaas Cornelis van Veen v Stichting Pensioenfonds voor
Fysiotherapeuten (n 106) para 21. 108 See above, ‘2.3.2.2 The obligation for a fair hearing’ 61. 109 Case C-72/95 Aannemersbedrijf P.K. Kraaijeveld BV e.a. v Gedeputeerde Staten van Zuid-Holland
[1996] ECR I-05403, para 58; See also: Delicostopoulos (n 3) 607; S Prechal, ‘Community law in
national courts: the lessons from Van Schijndel’ (1998) 35 CML Rev. 589, 697. 110 Case C-126/97 Eco Swiss China Time Ltd v Benetton International NV [1999] ECR I-3055, paras 36-
37: Treaty provisions essential for the functioning of the Internal Market have a public policy status for
those States that adopt public policy considerations in their domestic legal orders. For a critical analysis of the public policy definition in Eco Swiss see, inter alia: S Prechal and Shelkoplyas ‘National
Procedures, Public Policy and EC Law. From Van Schijndel to Eco Swiss and Beyond’ (2004) 5 E.R.P.L.
589, 600-609. 111 See also, case C-393/92 Municipality of Almelo and others v NV Energiebedrijf Ijsselmij [1994] ECR
I-01477, para 23.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
120
under discussion.112
Otherwise, the enforcement of the relevant provision would
become ineffective, despite its public policy status.
The same holds true where a national adjudicating body is prevented as a matter
of national procedural law to submit a reference for a preliminary ruling on an EU point
of law in accordance with Article 267 TFEU. A national rule providing that a litigant
has 60 days’ time to raise arguments that had not been previously invoked in the
original complaint, or that the Director had not raised of his own motion is not
objectionable per se. Nevertheless, things get more complicated when the original
complaint has been submitted before the Director of the national tax authorities and the
60-day period to lodge new claims on appeal has already expired by the time the appeal
procedure actually starts and the applicants have the opportunity to bring forward the
allegation about an EU point of law.
Firstly, the Director of the national tax authorities does not constitute a ‘court or
tribunal’ in the meaning of Article 177 (now 267 TFEU).113
Consequently, he could not
ask for a preliminary ruling on an EU law point. The first court in the procedure that
could refer for a preliminary ruling was the Cour d’Appel. Additionally, according to
the Belgian judicial organisation no other national court would be able to consider suo
motu the compatibility of the national measure with Article 52 TEC (now 49 TFEU) at a
later stage of the proceedings. The Belgian national law, though not objectionable in
itself, under the circumstances of the case it negatively affected the proper functioning
of the preliminary rulings, undermining the principle of effectiveness of EU law.114
The
possibility for national courts to refer an EU law point to the CJEU constitutes a
fundamental aspect of the EU legal order and a denominator of the judicial protection
that is offered in there; EU Treaty provisions should be given a uniform interpretation
regardless of the national circumstances in which they have to be applied.115
This
112 Case 102/81 Nordsee Deutsche Hochseefischerei GmbH v Reederei Mond Hochseefischerei Nordstern AG & Co. KG and Reederei Friedrich Busse Hochseefischerei Nordstern AG & Co. KG [1982] ECR
01095. 113 See Case C-24/92 Pierre Corbiau v Administration des contributions [1993] ECR I-1277. 114 Peterbroeck, Van Campenhout & Cie SCS v Belgian State (n 33) paras 16-21. 115 Eco Swiss China Time Ltd v Benetton International NV (n 110) para 40.
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finding combined with the lack of any possible justification on grounds of fundamental
principles of the judicial system, such as that of legal certainty and good administration
of justice, resulted in the Belgian rule to be overridden by considerations of
effectiveness of EU law.116
The combination of the possibility for the judging national authority to directly
make a reference for a preliminary ruling with the demand for effective application of
EU law has been heavily criticised. Even if the authority handling the original
application does not have direct access to the 267 TFEU mechanism, the national courts
that will review the case at a second stage will be able to make such a reference for a
preliminary ruling, so long as the parties have raised at first instance points of
compatibility of a national provision with an EU rule.117
Nevertheless, access to courts
should always be available when it comes to the enforcement of EU law rights and
obligations of a fundamental nature118
having a binding (competition law)119
and
directly effective character (freedom of establishment).120
It is the necessity to secure
judicial review of EU rights and obligations that lies behind the Court’s case law on
national courts’ duty to raise points of EU law suo motu.121
Even if the interested party
has not raised that fundamental EU law right in the extra-judicial proceedings, such as
116 Peterbroeck, Van Campenhout & Cie SCS v Belgian State (n 33) para 20. 117 See, G de Búrca, ‘National procedural rules and remedies: the changing approach of the Court of
Justice‘ in J Lonbay and A Biondi (eds), Remedies for Breach of EC Law (John Wiley &Sons 1997) 44; C F Jacobs, ‘Enforcing Community Rights and obligations in national courts: striking the balance’ in J
Lonbay and A Biondi (eds), Remedies for Breach of EC Law (John Wiley & Sons 1997) 32; M Hoskins,
‘Tilting the balance: supremacy and national procedural rules’ (1996) 21(5) ELR 374. See also, Samuel
Sidney Evans v The Secretary of State for the Environment, Transport and the Regions and The Motor
Insurers' Bureau (n 72) para 53. 118 See inter alia, case 222/86 Union nationale des entraîneurs et cadres techniques professionnels du
football (Unectef) v Georges Heylens and others [1987] ECR 4097, para 14. 119 Article 101 TFEU; Eco Swiss China Time Ltd v Benetton International NV (n 110); Jeroen van
Schijndel and Johannes Nicolaas Cornelis van Veen v Stichting Pensioenfonds voor Fysiotherapeuten (n
106). 120 Article 49 TFEU; Peterbroeck, Van Campenhout & Cie SCS v Belgian State (n 33). See also, Prechal, ‘Community law in national courts: the lessons from Van Schijndel’ (n 108) 698. 121 See: T Heukels, ‘Joined Cases C-430/93 and C-431/93, Van Schijndel and Van Veen v. Stichting
Pensioenfonds voor Fysiotherapeuten; and Case C-3 12/93, Peterbroeck, Van Campenhout & Cie SCS v.
Belgian State, both judgments of the Court of 14 December 1995 (full Court), not yet reported’ (1996) 33
CML Rev. 337, 352-353.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
122
before the Director of the national tax authorities,122
or an arbitral tribunal,123
national
courts reviewing the decision of these extra-judicial bodies should be able to raise suo
motu issues of enforcement of fundamental EU law rights. In that case, even if access to
the preliminary procedure might not be possible, the judging organ comes with adequate
guarantees regarding effective judicial protection and effective enforcement of binding
and directly effective EU rights.124
This interpretation conforms to Article 47 CFREU
and the right to an effective remedy before a court or tribunal for all EU law rights and
freedoms.125
Similarly, national courts can examine suo motu contractual clauses conferring
exclusive jurisdiction on the courts of the supplier’s principle place of business in the
context of Directive 93/13 on unfair terms in consumer contracts.126
The EU right under
discussion consists in consumers’ right not to be bound by unfair contractual terms.127
The above jurisdiction clause can be deemed unfair in the sense that it renders
consumers’ access to the courts more difficult and complicated, increasing the
imbalance between suppliers and consumers. This can occur due to the extra costs
associated with the necessity for consumers to move to the supplier’s domicile to enter
an appearance, which might deter them completely from initiating court action, or from
putting forward certain points of defence for fear that this could prolong the trial,
leading to yet more costs.128
National courts’ duty to consider the unfairness of such a
122 Peterbroeck, Van Campenhout & Cie SCS v Belgian State (n 33). 123 Eco Swiss China Time Ltd v Benetton International NV (n 110). On arbitral tribunals’ role see, inter
alia: Nordsee Deutsche Hochseefischerei GmbH v Reederei Mond Hochseefischerei Nordstern AG & Co.
KG and Reederei Friedrich Busse Hochseefischerei Nordstern AG & Co. KG (n 112). 124 See also: Prechal, ‘Community law in national courts: the lessons from Van Schijndel’ (n 109) 696; A
P Komninos, ‘Case C-126/97, Eco Swiss China Time Ltd. V. Benetton International NV, Judgment of 1
June 1999, Full Court’ (2000) 37 CML Rev. 469. See also, M Brealey and M Hoskins, Remedies in EC
law: Law and Practice in the English and EC Courts (2nd edn, Sweet & Maxwell 1998) 113-114. 125 See above, ‘2.3.1 Right to an effective remedy before a tribunal’ 53. 126 Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (n 15). 127 Ibid, Article 6. 128 Joined cases C-240/98 to C-244/98 Océano Grupo Editorial SA v Roció Murciano Quintero and Others [2000] ECR I-04941, para 22. See also: case C-473/00 Cofidis SA v Jean-Louis Fredout [2002]
ECR I-10875; case C-168/05 Elisa María Mostaza Claro v Centro Móvil Milenium SLElisa María
Mostaza Claro v Centro Móvil Milenium SL [2006] ECR I-10421, paras 36-39; case C-243/08 Pannon
GSM Zrt. v Erzsébet Sustikné Győrf [2009] ECR I-04713, paras 23-25, 30-32; Asturcom
Telecomunicaciones SL v Cristina Rodríguez Nogueira (n 16) paras 52-59.
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jurisdictional clause suo motu follows from the right of access to justice for the
enforcement of EU law rights and obligations.
4.3 Recasting CJEU case law on national procedural autonomy: lessons learned
for civil procedure harmonisation in the EU
In the previous section, I focused on the principles of equivalence and
effectiveness as a means for CJEU intervention into Member States’ domestic
procedural and remedial regimes for the enforcement of EU law rights and obligations. I
argued that CJEU has developed civil procedure rules permeated by access to justice
considerations. This is discernible in the procedural themes it has affected, namely
limitation periods, evidentiary rules, interim and compensatory relief. It is also apparent
in the recognition of the necessity for a balancing activity between the basic procedural
principles served by national procedural systems, such as the protection of the rights of
the defence, the principle of legal certainty, and the proper conduct of procedure, and
the effectiveness of EU law.129
In doing so, the impact of CJEU case law on national
procedural regimes has varied in degree, ranging from non-intervention, the setting
aside of incompatible national rules, and modification of others, to the creation of new
remedies, where deemed appropriate. As a result, the CJEU has offered an initial
affirmative approach to the EU ‘competence-competence’ question in the area of
procedural law. The critique expressed in this last section of this chapter should not be
seen as an attempt to downgrade the important role the CJEU has played so far in the
creation of EU civil procedure law. It only wishes to question the suitability and
capacity of CJEU to develop a coherent system of EU civil procedure law that actively
129 Jeroen van Schijndel and Johannes Nicolaas Cornelis van Veen v Stichting Pensioenfonds voor Fysiotherapeuten (n 106) para 19; case C-255/00 Grundig Italiana SpA v Ministero delle Finanze [2002]
ECR I-8003, para 33; case C-453/00 Kühne & Heitz NV v Produktschap voor Pluimvee en Eieren [2004]
ECR I-837; case C-224/97 Ciola v Land Voralberg [1997] ECR I-2517; Samuel Sidney Evans v The
Secretary of State for the Environment, Transport and the Regions and The Motor Insurers' Bureau (n 72)
para 45; Peterbroeck, Van Campenhout & Cie SCS v Belgian State (n 33).
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
124
promotes all aspects of the right of access to justice and strikes a balance between
competing interests.
What should be clarified once and for all at this point is that the entire CJEU
case law on national procedural autonomy has one single starting point and justification;
that is, the effective enforcement of EU law where private individuals are seen as
driving forces and primary paragons for the realisation of the objectives and aims of the
EU supranational endeavor.130
Kakouris, in his leading article on Member States’
judicial procedural autonomy, denied the existence of a principle of national procedural
autonomy as a whole. Using as a justification the lack of any explicit reference to this
term in the then existing CJEU case law, he suggested that national procedural laws are
ancillary to the supranational legal order, promoting its objectives and purposes.131
However, what Kakouris failed to realise is that the enforcement of EU law cannot be
the overarching principle in all cases and in an unqualified manner.
Given the CJEU institutional mandate,132
and the principles of subsidiarity and
proportionality, the Court has systematically limited its intervention into national
procedural and remedial regimes to an essential minimum level.133
As a result, the Court
has mainly imposed minimum procedural standards applicable for the enforcement of
the adjudicated EU law rights, leaving intact the procedural regimes applicable in
strictly internal cases.134
Even where it has been more daring, imposing new remedies
where these were not available under domestic law not even for domestic disputes, such
as in the case of interim relief, it has still been reluctant in specifying all the elements of
these remedies, leaving considerable discretion to national courts. In the example of
interim relief, CJEU only specified the constitutive conditions for granting interim
relief, without offering detailed explanations as to the repercussions and effect of these
130 See inter alia: M Accetto and S Zleptning, ‘The Principle of Effectiveness: Rethinking its Role in
Community Law’ (2005) 11(3) EPL 375; Prechal and Widdershoven (n 25) 40. 131 Kakouris, ‘Do the Member States possess Judicial Procedural Autonomy?’ (n 3) 1390; Bobek (n 17):
also denies completely the existence of the principle of national procedural autonomy. 132 Article 19 TEU. 133 See, joined cases C-430 and 431/93 van Schijndel and van Veen v Stichting Pensioenfonds voor
Fysiotherapeuten [1995] ECR I-4705, Opinion of AG Jacobs, para 27. 134 See, W Van Gerven, ‘Bridging the gap between Community and national laws: towards a principle of
homogeneity in the field of legal remedies?’ (1995) 32 CML Rev. 679, 700.
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rules, also leaving rules for the making and examination of the application for interim
relief to national procedures.135
The same is true for the remedy of damages for state or individual liability.136
There is strong interdependence between the heads of damage, or the limitation periods,
and the need for culpability and causal link.137
Leaving the former to Member States’
domestic procedural regimes and the latter to EU institutions cannot easily be
justified.138
This is all the more difficult, when seen in the remit of the fundamental
right of access to justice and the need for effective remedies, offering adequate relief.
The essence of this right can be eroded by both constitutive and executive conditions for
reparation.139
What is more, CJEU has mainly focused on the need for enforcement of EU law
through an empowered claimant. Therefore, it has adjudicated on access to courts and
effective remedies issues, such as limitation periods, evidentiary rules, compensation,
interim relief, and ex officio raise of EU law points, delegating matters of procedural
fairness and efficiency to Member States.140
Even when the Court intervened in the area
of the fundamental principle of equality of arms and adversariality of proceedings, the
emphasis was still placed on the necessity for EU law enforcement especially in case of
135 Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe and Zuckerfabrik Soest GmbH v
Hauptzollamt Paderborn (n 94) para 26. 136 See inter alia, Van Gerven, ‘Of Rights, Remedies and Procedures’ (n 3) 502. 137 Steiner, ‘The Limits of State Liability for Breach of European Community Law’ (n 58) 95-98. 138 See inter alia: Van Gerven, ‘Of Rights, Remedies and Procedures’ (n 3) 501; Himsworth (n 17). 139 The use of minimum standards has been a common theme in all modes of development of EU civil
procedure rules, including secondary, sectoral, and horizontal EU legislation. This has compromised the
possibilities to promote access to justice in a systematic fashion. See below, ‘5.2.2 Limitations of the
IPRED’ 145; ‘5.3.2.2 Minimum procedural standards’ 160. 140 See for instance, case C-276/01 Joachim Steffensen [2003] ECR I-03735, para 78:
It is for the national court to assess whether, in the light of all the factual and legal evidence
available to it, the admission as evidence of the results of the analyses at issue in the main
proceedings entails a risk of an infringement of the adversarial principle and of the right to a fair hearing. In the context of that assessment, the national court will have to examine, more
specifically, whether the evidence at issue in the main proceedings pertains to a technical field of
which the judges have no knowledge and is likely to have a preponderant influence on its
assessment of the facts and, should this be case, whether Mr Steffensen still has a real
opportunity to comment effectively on that evidence.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
126
fundamental Union provisions, such as in competition law.141
This becomes even more
apparent in the principle of equivalence. There, more protective national procedural
rules for the enforcement of domestic law are also deemed desirable for EU law,
without due consideration of the defendant’s competing interests in restraining such
enforcement and the interests of the good administration of justice in procedural
efficiency.142
Overall, the impact of the CJEU case law on national procedural regimes is
intentionally limited and sketchy even in the most so-called interventionist phases of its
development. CJEU can only investigate national procedural rules on an ad hoc,
retrospective basis. This is in turn highly dependent on lawyers’ willingness to
challenge national procedural and remedial rules in the remit of EU law enforcement,
and on national courts’ readiness to ask CJEU for a preliminary ruling. Therefore, the
premises of its intervention in national legal orders are essentially limited and
inappropriate. Lacking the resources and competence to examine national legal regimes
in a systematic and detailed fashion, it risks causing more harm than good, leading to
fragmented solutions.143
As a result, CJEU case law on national procedural and remedial autonomy is
difficult to explain normatively, as it is rather inconsistent and contradictory, and in any
141 That the procedural rule of reason introduced in Van Schijndel has not led to a minimalist approach is confirmed by Prechal: S Prechal, ‘Community law in national courts: the lessons from Van Schijndel’
(1998) 35 CML Rev. 681, 705-706. 142 See for instance, Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary
of State for Transport, ex parte: Factortame Ltd and others (n 24) para 89: exemplary damages. See also,
Himsworth (n 17) 310-311. 143 For similar CJEU case law shortcomings in the area of EU Administrative Law see, inter alia: O M
Puigpelat, ‘Arguments in favour of a general codification of the EU administrative procedure’ (Note,
European Parliament 2011) 16
http://www.europarl.europa.eu/RegData/etudes/note/juri/2011/432776/IPOL-
JURI_NT(2011)432776(PAR00)_EN.pdf accessed 04 December 2012:
[…] due to its specific nature and institutional function, case-law lacks the necessary instruments and perspective to create a complete and coherent body of procedural rules matching up to the
multiple functions – which are not just limited to defending individual rights and interests
(emphasis added) – […] In an EU with consolidated democratic institutions, the role of case-law
must be to solve the interpretative problems that may be thrown up by procedural rules, and not
to produce such rules.
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case widely fluctuating.144
For example, although Rewe v Hauptzollamt Kiel explicitly
stated that the Treaty was not intended to create new remedies in national legal
orders,145
Unibet confirmed that new remedies may have to be introduced where there
are no national remedies to enforce EU law rights even indirectly.146
In Peterbroeck147
national courts were deemed obliged to raise EU law points suo motu, whereas in Van
Schijndel148
the Court did not impose such a duty on national courts. In damages
actions, a one-year limitation period is considered reasonable,149
whereas in restitution
claims this limitation period increases by up to five-years.150
In San Giorgio the
payment of interest was regarded of secondary importance to the effectiveness of the
remedy of compensation,151
whereas in Marshall II it was deemed an indispensable
aspect of the right to effective judicial protection,152
only to conclude in ex Sutton that
the payment of interest depends on the restitutionary or compensatory character of the
claim.153
After all, CJEU intervenes based on the decentralised enforcement scheme
envisaged by the creators of the Treaties. Its role is rather delicate, striking a balance
with its enforcement counterparts, namely the national courts. If the rules of the
enforcement game in the EU should change, this is certainly a task for the Commission,
the Council, and the Parliament, under their respective legislative functions, to
undertake systematically and coherently.154
Therefore, it has repeatedly called on the
144 See: A Ward, ‘Effective Sanctions in EC Law: A Moving Boundary in the Division of Competence’ (1995) 1(2) ELJ 205; Bobek (n 17). 145 Rewe-Handelsgesellschaft Nord mbH and Rewe-Markt Steffen v Hauptzollamt Kiel (n 24) para 44. 146 Unibet (London) Ltd and Unibet (International) Ltd v Justitiekanslern (n 49) para 41. 147 Peterbroeck, Van Campenhout & Cie SCS v Belgian State (n 33). 148 Jeroen van Schijndel and Johannes Nicolaas Cornelis van Veen v Stichting Pensioenfonds voor
Fysiotherapeuten (n 106). 149 Case C-90/94 Haahr Petroleum Ltd v Åbenrå Havn and Others [1997] ECR I-4085. 150 Rosalba Palmisani v Istituto nazionale della previdenza sociale (n 7). 151 Amministrazione delle Finanze dello Stato v SpA San Giorgio (n 69). 152 Marshall v Southampton and South-West Hampshire AHA (n 70). 153 The Queen v Secretary of State for Social Security, ex parte Eunice Sutton (n 75). 154 Steiner, ‘The Limits of State Liability for Breach of European Community Law’ (n 58) 109;
R Craufurd-Smith, ‘Remedies for breaches of EU law in national courts: Legal variation and selection’ in
P Craig and G de Búrca (ed), The Evolution of EU Law (1st edn, OUP 1999) 318-319; J Bridge,
‘Procedural Aspects of the Enforcement of European Community Law through the Legal Systems of the
Member States’ (1984) 1 ELR 28, 39-42; G Cumming, M Freudenthal, and R Janal, Enforcement of
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
128
EU legislature to take up its role and provide a coherent, holistic, and systematic
approach, inspired by the right of access to justice, carefully considering competing
interests, contributing, ultimately, to the functioning and realisation of the supranational
legal order through the respect and promotion of the rule of law.155
Despite the limited impact on the harmonisation of procedural law in the EU,
and the pre-eminent law enforcement perspective, CJEU case law on national
procedural autonomy has nonetheless sketched the right way forward for the EU
legislature, which should promote access to justice when developing common civil
procedure rules. This becomes more apparent in recent CJEU case law on national
procedural autonomy, where the principles of effectiveness and effective judicial
protection are used almost interchangeably by the Court.156
For instance, in the Arcor
case, the CJEU rephrased the principle of national procedural autonomy suggesting that
in the absence of relevant Union rules, ‘it is a matter solely for the Member States,
within the context of their procedural autonomy, to determine, in accordance with the
principles of equivalence and effectiveness of judicial protection,157
the competent court,
the nature of the dispute and, consequently, the detailed rules of judicial review […]’.158
Under this formulation, the initial Rewe principle of effectiveness and the Johnston
principle of effective judicial protection have apparently merged to create a broader,
higher principle of effectiveness of judicial protection.159
[Footnotes continued on next page]
Intellectual Property Rights in Dutch, English and German Civil Procedure (Kluwer Law International
2008) 9: this inherent limitation of CJEU case law in intervening coherently and systematically in
national procedural regimes is described by the authors of the book as a ‘constitutional weakness’. 155 See inter alia: Express Dairy Foods Limited v Intervention Board for Agricultural Produce (n 69) para
12; Deutsche Milchkontor GmbH and others v Federal Republic of Germany (n 69) para 44; Dilexport Srl
v Amministrazione delle Finanze dello Stato (n 103) para 25. 156 See also, A Arnull, ‘The principle of effective judicial protection in EU law: an unruly horse?’ (2011)
36(1) ELR 51, 55. 157 Emphasis added. 158 Case C-55/06 Arcor AG & Co. KG v Bundesrepublik Deutschland [2008] ECR I-02931, para 170. 159 See also, case C-411/10 N. S. v Secretary of State for the Home Department [2011] OJ C 49/8,
Opinion of AG Trstenjak, para 161: ‘The minimum content of the right to an effective remedy includes
the requirements that the remedy to be granted to the beneficiary must satisfy the principle of
effectiveness’.
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More importantly, the recent Impact case explicitly mentions that the principles
of equivalence and effectiveness are but the embodiment of the principle of effective
judicial protection of EU law rights.160
In Alassini, the Court used the principles of
equivalence and effectiveness and of effective judicial protection interchangeably,
associating them openly with the right to effective remedy and fair trial of Article 47. It
is against this fundamental right that it then undertook a balancing activity investigating
whether limitations to this right pursue a legitimate aim in a proportional manner that
does not render the right of access to justice a mere theoretical possibility.161
Indeed the
Court in this case first examined the national procedural rule imposing a mandatory
attempt for out-of-court settlement, from the perspective of the principle of
effectiveness, and secondly from that of effective judicial protection. Having said that,
the considerations developed with regard to both principles were identical, namely
whether such a national procedural provision prohibits access to courts, imposing
additional costs on prospective litigants, also negatively affecting the period for time
barring claims before the courts, and prolonging the final resolution of a dispute, due to
its unreasonable length.162
In doing so, the Court made the first step towards the streamlining of its case
law on national procedural and remedial autonomy with Article 47 CFREU. It has also
opened up the way for the development of a more coherent and consistent body of
future case law, where the principles of effectiveness and effective judicial protection
will be subsumed in light of the constitutionalisation of the fundamental right of access
160 Case C-268/06 Impact v Minister for Agriculture and Food and Others [2008] ECR I-02483, para 47;
see also: case C-63/08 Virginie Pontin v T-Comalux SA [2009] ECR I-10467, para 44; Unibet (London)
Ltd and Unibet (International) Ltd v Justitiekanslern (n 49) para 43. On the close relationship between the
principle of effectiveness and effective judicial protection as a predecessor of the right of access to justice
in the EU, see: P Haapaniemi ‘Procedural Autonomy: A Misnomer?’ in in L Ervo, M Gräns, and A Jokela
(eds), Europeanisation of Procedural Law and the New Challenges to Fair Trial (European Law
Publishing 2009) 106-108; P Oliver, ‘Case C-279/09, DEB v Germany Judgment of the European Court of Justice (Second Chamber) of 22 December 2010, nyr.’ (2011) 48 CML Rev. 2023, 2038-2039; Prechal
and Widdershoven (n 25) 45. 161 Joined cases C-317/08, C-318/08, C-319/08 and C-320/08 Rosalba Alassini and Others v Telecom
Italia SpA and Others [2010] ECR I-02213, para 63. 162 Ibid, paras 54-57.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
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to justice.163
Effective access to justice constitutes the gatekeeper for a systematic
communication and cooperation between diverse legal orders in a sui generis, quasi-
federal construct such as that of the European Union.164
This constitutes a crucial
finding which the EU legislature should carefully consider so as to come up with
concrete, coherent, and complete rules of EU civil procedure law. Even so, the CJEU
case law will always be a valuable guiding tool for the adoption of general procedural
rules by the EU legislature.165
The enactment of the Lisbon Treaty and the constantly increasing role of the
fundamental right of access to justice render this possibility the more realistic and
probable. According to Article 67(4) TFEU, the Union should facilitate access to justice
in the field of judicial cooperation in civil matters. There is a straightforward
interdependence between judicial cooperation in civil matters and access to justice as a
fundamental procedural right in the EU. Additionally, Article 81(2)(e) TFEU explicitly
recognises effective access to justice as a legitimate objective to be promoted via EU
approximation measures. Therefore, I argue that the fundamental right of access to
justice may serve as the appropriate yardstick for the interpretation and development of
EU civil procedure in a systematic and coherent way.166
A first step to this end may be
the prospective EU instrument on procedural minimum standards to be delivered in
2013.167
Provided these standards are formed based on the relevant CJEU case law and,
where applicable, ECtHR case law, this will bring about more coherence and
consistency in the area of EU civil procedure law, influencing domestic procedural
regimes in matters covered by Union law.168
163 See, B Hess, ‘Procedural Harmonisation in a European Context’ in X E Kramer and C H van Rhee
(eds), Civil Litigation in a Globalising World (T.M.C. Asser Press 2012) 169. 164Accetto and Zleptning (n 130) 382. 165 Arnull, ‘The principle of effective judicial protection in EU law: an unruly horse?’ (n 156) 68 166 See, E Storskrubb, ‘Civil Justice – A New Comer and an Unstoppable Wave?’ in P Craig and G de
Búrca (eds), The Evolution of EU Law (OUP 2011). 167 Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Delivering an area of
freedom, security and justice for Europe's citizens’ (Action Plan Implementing the Stockholm
Programme) COM (2010) 0171 final, 23. 168
See, Hess, ‘Procedural Harmonisation in a European Context’ (n 163) 170.
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4.4 A Recap
In the absence of EU procedural and remedial law, national legal regimes should
assist with the enforcement of EU rights and obligations. The Court needs to strike a
balance between the EU law aim of effectively enforcing EU rights and obligations, and
the specific role that domestic procedural rules play in Member States’ legal orders. In
reviewing national procedural rules for guaranteeing the effective and equivalent
enforcement of EU law, CJEU has approximated Member States’ procedural regimes.
This has happened in a rather restrained and negative way, asking national courts to
disapply certain ineffective or discriminatory procedural provisions, or to expand their
scope of application for the adjudication of EU law rights and obligations too. Only
exceptionally, has the Court asked national courts to create a new remedy where there
are no national remedies to enforce EU law rights even indirectly.169
Overall, CJEU has not actively harmonised national procedural regimes via the
imposition of new procedural and remedial rules at a centralised EU level. Except for
some basic guidance, it has mainly asked national courts to take up this active role. The
essentially factual approach of the Court as well as its incapacity to consider relevant
remedial and procedural rules in 28 Member States prevent it from establishing detailed
rules of EU civil procedure.170
Despite its limited harmonising impact, the CJEU case
law on national procedural autonomy has clearly sketched the methodological approach
for the future development of comprehensive EU civil procedure law. This may be
achieved using the right of access to justice as a yardstick, promoting the effective
enforcement of EU law rights and obligations in parallel with considerations of
procedural fairness and efficiency of procedural systems.
Against this backdrop, I have argued for a reinforced presence and activity of the
EU legislature in the area of EU civil procedure law based on the fundamental right of
169 Unibet (London) Ltd and Unibet (International) Ltd v Justitiekanslern (n 49) para 41. 170 See also, M Dougan, National Remedies Before the Court of Justice: Issues of Harmonisation and
Differentiation (Hart Publishing 2004) 391-395.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
132
access to justice. I believe that Article 81(2)(e) TFEU constitutes the competence-basis
EU institutions could legitimately use to harmonise national procedural systems for the
effective enforcement of EU law rights and obligation in accordance with the procedural
guarantees for effective remedies and fair trial in Article 47 CFREU.171
Even so, the
CJEU case law will always be valuable as a guiding principle and as a vehicle for
further interpretation and justification of EU legislation on civil procedure rules
promoting the right of access to justice.172
In the next chapter, I will investigate in more detail the suitability and potential
of the EU legislature in promoting coherent and systematic solutions in civil procedure
law. I will focus on some examples of EU legislation containing procedural rules in
certain sectors of EU activity, such as the Intellectual Property Enforcement Directive
(IPRED). I will also look at horizontal secondary instruments introducing autonomous
EU procedures, such as the European Small Claims Procedure (ESCP). My aim is to
examine to what extent these modes of EU intervention into national procedural
regimes actually harmonise civil procedure law, also identifying any potential
limitations for the systematic promotion of the right of access to justice in the EU. I will
argue that although these pieces of legislation are a step in the right direction for a
comprehensive approach to EU civil procedure law, they lack the completeness and
consistency, necessary to achieve conceptual clarity, systematic fullness, and formal
unity. Having said that, current discussions on a coherent approach to collective redress
in the EU offer some preliminary indications as to the right way forward in civil
procedure harmonisation.
171 See: Brown (n 4) 71: ‘Or is there not here a role for action under the Third Pillar of the Maastricht
Treaty concerned with Justice and Internal Affairs?’; P Carozza, ‘The Member States’ in S Peers and A
Ward (eds), The European Union Charter of Fundamental Rights (Hart Publishing 2004) 49-50: the
Charter could affect Member States’ domestic legislation even in areas not covered by Union
competence. This could happen where national courts adopt a dynamic interpretation of their national human rights provisions in accordance with the content and scope of the Charter Articles. See also, A W
Heringa and L Verhey, ‘The EU Charter: Text and Structure’ (2001) 8 MJ 17-20; Commission, ‘Proposal
for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters’ COM (2010) 748 final. 172 Arnull, ‘The principle of effective judicial protection in EU law: an unruly horse?’ (n 156) 68
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
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5 Sectoral v Horizontal EU Civil Procedure Law: A Constitutional
Conundrum?
5.1 Introduction
In the previous chapter, I examined the role of CJEU case law in the
development of civil procedure rules in the EU. Focusing on the principle of national
procedural autonomy and its constituent facets, the principles of equivalence and
effectiveness, I argued that the Court has tried to intervene in national procedural
regimes, striking a balance between the effective enforcement of EU law rights and
obligations and the interests of the defence and the good administration of justice. This
balancing activity is inherent in the fundamental right of access to justice as codified in
Article 47 CFREU. Despite instances of significant intervention in national procedural
regimes, the Court has always been aware of its limited capacities in considering
thoroughly the legal systems of all Member States. As a result, it has often asked the EU
legislature to take up its role in the area of civil justice.1
Therefore, in this chapter, I will focus on the activities of the EU legislature in
the area of civil procedure law. Currently, legislative harmonisation of civil procedure
in the EU is primarily achieved through secondary, sector-specific rules. These rules
aim to ensure equal and effective enforcement of substantive EU provisions in the
various Member States. Examples of this type of EU regulatory activity can be found in
insurance law, labour law, intellectual property law, corporate law, e-commerce,
communications law, and consumer law.2 Going through the entire acquis
communautaire, however, in order to find out all examples of ad hoc procedural
1 See, case 130/79 Express Dairy Foods Ltd v Intervention Board for Agricultural Produce [1980] ECR
1887, para 12: ‘In the regrettable [emphasis added] absence of Community provisions harmonising
procedure and time-limits […] It is not for the Court to issue general rules of substance or procedural provisions which only the competent institutions may adopt [emphasis added]’. 2 For concrete examples see, inter alia: T Andersson, ‘Approximation of Procedural Law in Europe’ in M
Storme (ed), Procedural Laws in Europe: Towards Harmonisation (Maklu 2003) 55-58; J Stuyck,
‘Enforcement and Compliance: An EU Law Perspective’ in R Brownsword, H W Micklitz, and S
Weatherill (eds), The Foundations of European Private Law (Hart Publishing 2011) 513ff.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
134
provisions in EU legislation would be both time-consuming and cumbersome, without
adding any value to the discussion. Instead, I will focus on a recent example of
secondary EU legislation introducing EU civil procedural rules in national procedural
regimes. Particularly, Directive 2004/48/EC on the enforcement of Intellectual Property
Rights (IPRED) constitutes the first legal framework directly regulating procedural
aspects at a European Union level.3 IPRED has brought about substantial amendments
in Member States’ internal procedural systems and has had a negative impact on access
to justice in some Member States.4
In addition, I will look at yet another mode of EU civil procedure legislative
intervention, namely via horizontal secondary EU instruments, aimed at facilitating
dispute resolution in civil matters, regardless of a specific subject matter or area of EU
activity. I will investigate whether this mode of EU intervention can lead to greater
coherence in EU civil procedure law, allowing for a systematic and constitutionally
legitimate consideration of the right of access to justice. To this end, I will focus on the
recent European Small Claims Procedure (ESCP)5 as an example of the practical
implications of a horizontal approach for a coherent EU civil procedure law.
In the final part of the chapter, I will look at the current developments6 for the
creation of an EU collective redress system for damages actions in the areas of EU
3 Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the
enforcement of intellectual property rights (IPRED) [2004] OJ L 195/16. 4 P M M van der Grinten, ‘Challenges for the Creation of a European Law of Civil Procedure’ (2007) 3
TCR 65-70 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1392006 accessed 18 October 2012. The
Netherlands constitutes a good example of the impact of the IPRED on Member States’ domestic systems
of civil procedure. For example, an enactment to amend the Dutch Code of Civil Procedure in relation to
the addition of a new title on the enforcement of intellectual property rights was submitted to the Dutch
Lower House on the 19th of December 2005. Additionally, a severe drop in IP court trials was monitored
due to an alteration of the rules on costs allocation: instead of compensating the winning party’s fees at a
fixed rate – as it was provided in the Dutch Code of Civil Procedure – the IPRED introduced the
compensation of actual legal costs, rendering trial costs less predictable. The amendment to the Dutch
Code of Civil Procedure was the insertion of a new chapter on Intellectual Property Rights whereby the
exceptional rule on cost allocation was introduced. 5 Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007
establishing a European Small Claims Procedure (ESCP) [2007] OJ L199/1. 6 Commission, ‘White Paper on Damages actions for breach of the EC antitrust rules’ COM (2008) 165
final. See also, Commission, ‘White paper on damages actions for breach of the EC antitrust rules’ (staff
working document) SEC (2008) 404 that entails the authentic interpretation of the White Paper. A draft
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competition and consumer law. The future adoption of EU competition and/or consumer
collective redress mechanisms will have a potentially significant impact on EU citizens’
effective access to justice, a right that is difficult to exercise efficiently when it comes to
private enforcement of competition rules or of consumer rights.7 More importantly,
although initial discussions favoured a sectoral approach to collective redress, the recent
Commission public consultation, entitled ‘Towards a Coherent Approach to Collective
Redress’, and subsequent deliberations on the topic have adopted a more nuanced
perspective, combining elements of both a horizontal and sectoral approach.
5.2 Sectoral EU civil procedure rules: the example of IPRED
IPRED has introduced detailed rules on various matters of procedural nature,
applicable to both domestic and cross-border disputes, based on Article 114 TFEU and
the relevant provisions on the approximation of laws in the Internal Market. It
constitutes a secondary, sector-specific piece of EU legislation, entailing ad hoc rules of
civil procedure in the area of IP rights enforcement,8 aimed at ensuring that existing EU
[Footnotes continued on next page]
directive also leaked to the public, which was never adopted. Finally see, Commission, ‘Green Paper on
Consumer Collective Redress’ COM (2008) 794 final. 7 ‘White Paper on Damages actions for breach of the EC antitrust rules’ (n 6) 2-3; ‘Green Paper on
Consumer Collective Redress’ (n 6) 3-5. 8 Early, often limited, examples of this type of EU regulatory activity can be found in the area of EU
consumer law. See for instance: Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market [2005]
OJ L 149/22 (Articles 11 ‘Enforcement’, 12 ‘Courts and administrative authorities: substantiation of
claims’, and 13 ‘Penalties’); Directive 97/7/EC of the European Parliament and of the Council of 20 May
1997 on the protection of consumers in respect of distance contracts [1997] OJ L 144/19 (Article 11
‘Judicial or administrative redress’); Directive 2009/22/EC of the European Parliament and of the Council
of 23 April 2009 on injunctions for the protection of consumers' interests [2009] OJ L110/30. See more
broadly in the area of EU commercial law: Directive 2011/7/EU of the European Parliament and of the
Council of 16 February 2011 on combating late payment in commercial transactions [2011] OJ L48/1
(Article 10 ‘Recovery procedures and unchallenged claims’); Directive 2000/31/EC of the European
Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in
particular electronic commerce, in the Internal Market (Directive on electronic commerce) [2000] OJ L178/1 (Articles 18 ‘Court Actions’ and 20 ‘Sanctions’). In the area of labour law, see: Directive
2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the
principle of equal opportunities and equal treatment of men and women in matters of employment and
occupation (recast) [2006] OJ L204/23 (Articles 17 ‘Defence of Rights’, 18 ‘Compensation or
Reparation’, and 19 ‘Burden of Proof’). Finally, in the area of public procurement law, see: Directive
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
136
substantive IP rights are enforceable across the Member States.9 The directive preamble
emphasises that disparities among Member States' mechanisms of enforcing IP rights
'are prejudicial to the proper functioning of the Internal Market and make it impossible
to ensure that IP rights enjoy an equivalent level of protection throughout the EU.'10
In
the cross-border environment, this situation could allow economic operators to take
advantage of diverging national enforcement systems in order to circumvent the
application of EU IP legislation.11
The preamble goes on to suggest that enforcement
disparities harm the effectiveness and efficiency of EU substantive law on IP, also
leading to a fragmented Internal Market. Significant issues of civil justice, such as
interim relief and evidentiary rules, are regulated in a different manner for the various
subject matters falling within the remit of EU regulatory competence.12
Subsequently,
specific action at EU level is needed for Member States' IP rights’ enforcement regimes
to be approximated.13
My aim in this section is twofold. Firstly, I will argue that IPRED provisions
transcend their strict sectoral remit, essentially affecting fundamental aspects of
Member States’ national civil procedure rules. Secondly, I will suggest that in doing so,
IPRED has over-emphasised the law enforcement function of civil justice systems, and
in doing so, has downgraded the importance of procedural fairness and efficiency in
judicial proceedings. More importantly, the sectoral approach has a restrictive effect on
[Footnotes continued on next page] 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council
Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness
of review procedures concerning the award of public contracts [2007] OJ L335/31 (Article 2a ‘Standstill
period’). 9 IPRED (n 3) recitals 9-10. 10 Ibid, recital 8. 11 The Committee on Legal Affairs in the European Parliament stressed the lack of sufficient indication
that the current enforcement framework in the EU is effective and harmonised to the extent necessary for
the proper functioning of the Internal Market with regard to intellectual property rights. It requires further
research on the issue: European Parliament, 'Draft Report on enhancing the enforcement of intellectual
property rights in the internal market' 2009/2178(INI), 4-5 <http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+COMPARL+PE-
438.164+01+DOC+PDF+V0//EN&language=EN accessed 25 March 2013. 12 G Wagner, ‘Harmonisation of Civil Procedure: Policy Perspectives’ in X E Kramer and C H van Rhee
(ed), Civil Litigation in a Globalising World (T.M.C. Asser Press 2012) 102-106. 13 IPRED (n 3) recital 9.
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the potential for IPRED to promote effectively the enforcement of EU law too. As a
result, the following subsections should not be seen as an attempt for a comprehensive
critique of all individual provisions and procedural rules established in the Directive.
Accordingly, I will barely address IPRED provisions that can more easily be
justified under the sector-specific scheme of IP rights protection, as they are less
normatively significant from a civil procedure law perspective. These involve rules on
corrective measures,14
permanent injunctions, and alternative measures.15
The award of
damages constitutes a broader procedural theme,16
which in the area of IP rights
protection calls for particular modulations, especially with regard to their quantification.
Finally, the calculation and proof of losses in sales for the award of damages call for
specific provisions on the disclosure of information17
on, inter alia, the quantities of
infringing goods or services produced, manufactured, delivered, received or ordered,
and the price obtained for these goods or services.18
14 These have been modelled on inter alia, Article 87(2) of the Belgian Law on Copyright and
Neighbouring Rights. 15 Alternative measures have been based on the German copyright provision: §100 UrhG
‘Entschädigung’. 16 See above, ‘4.2.2 Interpreting the principle of effectiveness’ 103. 17 Article 8 IPRED was actually based on pre-existing IPR provisions in some Member States, such as in
Germany: § 19 MarkenG ‘Auskunftsanspruch’. 18 Commission, ‘Analysis of the application of Directive 2004/48/EC of the European Parliament and the
Council of 29 April 2004 on the enforcement of intellectual property rights in the Member States Accompanying document to the Report from the Commission to the Council, the European Parliament
and the European Social Committee on the application of Directive 2004/48/EC of the European
Parliament and the Council of 29 April 2004 on the enforcement of intellectual property rights COM
(2010) 779 final’ (Staff Working Document) SEC (2010) 1589, 11. That being said, the rule is partly
inspired by the English equitable Norwich Pharmacal (disclosure) Orders, an institution not explicitly
regulated in CPR and which remains rather blur and difficult to use. This remedial relief is not limited to
IP rights adjudication and has a very broad spectrum of application regardless of the legal nature of the
wrongdoing. Although specific provisions for the protection of intellectual property rights may be
justified (such as the expansion of this right to intermediaries) the broader right to information may
conflict with the right to privacy and confidentiality, in which case general guarantees against the abuse
of this right may have been rational at a horizontal, EU level of action. See, inter alia: Norwich Pharmacal Co. v Commissioners of Customs and Excise [1974] A.C. 133; J Bellamy, ‘Professional
Liability Claims: Norwich Pharmacal Proceedings and Human Rights’ (Presentation to the Professional
Negligence Lawyers’ Association, 25.06.09)
http://www.39essex.com/docs/articles/Norwich_Pharmacal_Presentation_Paper_PNLA.pdf accessed 22
October 2012.
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5.2.1 An instrument for harmonising core aspects of civil procedure?
According to recital 11, IPRED does not harmonise civil procedure rules. It is
only aimed at complementing, and to some extent expanding,19
the 1994 Agreement on
Trade-Related Aspects of Intellectual Property Rights (hereafter TRIPS Agreement) to
which the Member States and the EU are already signatories, bound by its provisions on
the means of enforcing IP rights.20
In other words, IPRED provisions are primarily
inspired by the TRIPS Agreement having the objective to bring greater homogeneity in
Member States’ IP rights enforcement regimes, as these have already been affected by
this international agreement. However, IPRED has also introduced certain provisions
embodying core civil procedure rules, albeit applicable to the enforcement of IP rights
only. This is mainly envisaged in Articles 6-7 IPRED on pre-trial evidentiary rules,
Article 9 IPRED on provisional and precautionary measures, and Article 14 IPRED on
costs allocation rules.
To begin with, Articles 6 and 7 of the IPRED impose various obligations on
Member States to adopt measures for the collection and preservation of evidence in
cases of infringement of intellectual property rights. These measures should provide for
the possibility for judicial authorities to order the presentation of evidence in the
opposing party’s control, which are essential for the substantiation of an infringement
claim. In cases of violations on a commercial scale, courts can also ask for the
communication of banking, financial, or commercial documents in the opposing party’s
control. Along the same lines, there are provisions for the preservation of evidence even
prior to the commencement of legal proceedings, in the form of provisional evidentiary
measures. These include the acquisition of detailed descriptions of the infringing goods,
19 The additional, non-TRIPS originating, IPRED provisions are standing opportunities for trade
associations and professional defence bodies, power to seize documentary evidence and infringing goods,
a right to information re the source of infringing goods, pre-trial injunctions including against
intermediaries, seizure of assets in bank accounts for the payment of damages, recall of infringing goods,
alternative methods for the calculation of damages, legal costs rule, and the obligation for publicity. 20 Commission, ‘Proposal for a Directive of the European Parliament and of the Council on measures and
procedures to ensure the enforcement of intellectual property rights’ COM (2003) 46 final, 8. See also,
Council Decision 94/800/EC concerning the conclusion on behalf of the European Community, as regards
matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations
(1986-1994) [1994] OJ L 336/1.
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as well as the physical seizure of these infringing goods, and of ‘materials and
implements used in the production and/or distribution of these goods’ and associated
documents. Regardless of relevant points of criticism,21
IPRED provisions on the taking
and preservation of evidence touch upon the core of civil procedure law; these Articles
are material for the gathering and maintenance of evidence to prove the infringement of
an IP right, which would otherwise be difficult.
Article 9 IPRED follows a similar rationale, touching on core procedural
matters, namely the forms and requirements for the award of interim remedial relief.
Courts must be able to issue interlocutory injunctions for the prevention or
discontinuation of an impending infringement of an intellectual property right, or for the
provision of guarantees for the reimbursement of the right-holder in cases of continued
infringement. Other forms of interim relief can be ordered, such as the seizure or
delivery up of the goods suspected of infringing an intellectual property right, the
precautionary seizure of the movable and immovable property of the alleged infringer,
and the communication of bank, financial or commercial documents, or appropriate
access to the relevant information. For the award of these forms of interim relief, the
applicant-right-holder must provide all reasonably available evidence to the judicial
authorities, proving with a sufficient degree of certainty that his or her rights are being
infringed or that such an infringement is imminent.
Finally, the procedural character of the IPRED becomes even more apparent in
Article 14 and its provisions on the reimbursement of legal costs. These involve among
others, lawyer's fees, as well as expenses incurred by the successful party, such as
investigation costs and costs for expert opinions. According to the same Article, the
losing party should reimburse legal costs in full, provided they are reasonable and
proportionate and equity or the economic situation of the other party allow this.
A possible explanation for such a sector-specific approach could be the
sensitivity of the issues from a legal culture perspective. By limiting pre-trial
21 Mainly due to the lack of clarity on the meaning of the phrase ‘in the control of the opposing party’,
what constitutes confidential information, and infringement of commercial scale. See also below, ‘5.2.2
Limitations of the IPRED’ 145.
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140
evidentiary rules, provisional measures, and costs allocation rules to one area of
substantive law, Member States can more easily accept potential deviations from their
general civil procedure rules on the same matters.22
However, even where Member
States have separate proceedings for the enforcement of IP rights, there are direct
connections between these sectoral rules and the general civil procedural rules. This
becomes more evident when looking at the origins of the sector-specific procedural
provisions in the IPRED. Particularly, Articles 6 and 7 IPRED have been modelled on
various existing national civil procedure rules of general application, following the
‘best-practices approach’.23
Articles 6 and 7 IPRED largely originate in England and
Wales, and the so-called Anton Piller24
and Doorstep orders.25
Similar provisions can be
found in many other jurisdictions, such as in the Netherlands and Articles 843a and 700-
770c CCP on the disclosure and preservation of evidence. What is more, the second
paragraph of Article 9 IPRED on the possibility of precautionary seizure of movable
and immovable property and other assets is inspired by English civil procedure rules,
specifically, part 25.1(1)(f) CPR on interim remedies and ‘freezing injunctions’, also
known as Mareva injunctions.26
Finally, Article 14 IPRED embodies a common
procedural rule existing in most Member States irrespective of the adjudication or not of
an IP right.27
EU legislature should not dispose of all these fundamental themes in a few
Articles of a sector-specific directive, using as an excuse that IPRED is not about civil
22 See, M Tulibacka, ‘Europeanization of Civil Procedures: in Search of a Coherent Approach’ (2009) 46
CML Rev. 1527, 1547. 23 Commission, ‘Report from the Commission to the European Parliament, the Council, the European
Economic and Social Committee and the Committee of the Regions Application of Directive 2004/48/EC
of the European Parliament and the Council of 29 April 2004 on the enforcement of intellectual property
rights’ COM (2010) 779 final, 5: the actual IPRED provisions have been based on the most effective
practices in national regimes. 24 Part 25.1(1)(h) Civil Procedure Rules; Anton Piller KG v Manufacturing Processes Ltd. [1976] 1 Ch.
55, [1976] R.P.C. 719. 25 Universal City Studios Inc. v Mukhtar & Sons [1976] F.S.R. 252. 26 Mareva Compania Naviera SA v International Bulk Carriers SA [1975] 2 Lloyd’s Rep. 509. See also,
‘Proposal for a Directive of the European Parliament and of the Council on measures and procedures to
ensure the enforcement of intellectual property rights’ (n 20) 22. 27 See for instance: Title 5 and Section 91 of the German Code of Civil Procedure (ZPO); Chapter 21 of
the Greek Civil Procedure Code (ΚπολΔ); Part 44 of the English Civil Procedure Rules (CPR).
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procedure harmonisation, but rather the enforcement of IP rights law. Such a tactic
would presumably lead to a situation where evidentiary rules, provisional measures, and
reimbursement of legal costs rules would have to be developed anew in the various
areas of EU substantive legislation, unnecessarily complicating civil justice systems.
This becomes evident in the context of damages actions for antitrust cases. I will
explore the discussions in this area below.28
For the time being, I should mention that
one of the issues a potential future sectoral instrument on antitrust damages would have
to tackle is that of evidentiary and disclosure rules, of the type provided in IPRED.29
It should be underscored that such a sectoral approach allows the gradual
creation of EU civil procedure law on a trial and error basis; only after procedural rules
have been tested in particular areas of law will they be generalised to cover additional
substantive matters.30
Member States’ general procedural rules have been used and
tested over the years, with judicial authorities interpreting them, also striking a more or
less satisfactory balance between the parties’ conflicting interests.31
As a result,
producing general EU procedural rules on these core matters may be a mission
impossible due to the various parameters and interests to be considered. Presumably,
sectoral rules raise fewer challenges.
In my opinion, however, such an approach may lead to unnecessary
multiplication of effort, and potential inconsistencies between the procedural rules in the
various sectoral instruments. This in turn may lead to further fragmentation of EU civil
procedure rules, complicating civil justice systems, hardly promoting access to justice in
the EU in case of violation of EU law rights or obligations. Furthermore, such an ad hoc
28 See below, ‘5.4 What is next? Towards a coherent approach to collective redress’ 165. 29 See inter alia: ‘White Paper on Damages actions for breach of the EC antitrust rules’ (n 6) 2-3; ‘Green
Paper on Consumer Collective Redress’ (n 6) 4-5; P Buccirossi et al., Collective Redress in Antitrust:
Study (European Union 2012) 89
http://www.europarl.europa.eu/committees/en/studiesdownload.html?languageDocument=EN&file=7435
1 accessed 22 October 2012. That this sectoral practice on core procedural themes will eventually call for
an additional harmonising comprehensive instrument, see: B Hess, ‘Procedural Harmonisation in a European Context’ in X E Kramer and C H van Rhee (eds), Civil Litigation in a Globalising World
(T.M.C. Asser Press 2012) 165. 30 See, Wagner, ‘Harmonisation of Civil Procedure: Policy Perspectives’ (n 12) 118. 31 W James and J Smith, ‘The IP enforcement directives further legislation really necessary to level the
playing field? A UK perspective’ (2004) 20(5) C.L.S.R. 356, 361-362.
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approach to core procedural rules may compromise their overall quality. Assuming that
the limitation of the substantive scope of application of a rule will render the drafting
process and the balancing of the interests involved less challenging is unjustified.
Sectoral disclosure rules are not less fundamental for the promotion of the interests of
the claimant to establish the violation of his/her IP rights; the interests of the defendant
to not unnecessarily disclose business secrets; and, the interests of the good
administration of justice not to be unreasonably costly, for instance due to the need to
screen all documents for legal privilege.
This may be demonstrated in the example of the IPRED provision on costs
allocation. Specifically, the losing party should bear, in principle, the legal costs and
other expenses, provided these are reasonable and proportionate and are not against
equity.32
This provision is fundamental from an access to justice point of view,
influencing the possibility to access the courts asking for a judicial remedy.33
Especially
in the remit of IP rights protection, legal costs are often very high, comprising costs for
technical experts,34
translation costs, and costs associated with ‘test purchases’.35
Overall increased legal expenses are associated with the need to acquire proper and
reliable evidence to initiate infringement proceedings,36
and as such are of fundamental
importance for access to courts in IP cases. The new rule rendered unpredictable the
estimation of the final costs of initiating a court procedure37
and deterred risk-averse
parties from initiating court proceedings for the enforcement of their IP rights due to
higher legal costs in the event of defeat. As a result, although this IPRED proviso aimed
at compensating winning litigants, it nonetheless led to a severe drop in the number of
32 Article 14 IPRED. 33 See above, ‘2.3.2.1 The requirement for access to the courts’ 58. 34 For instance, patent agents or Internet investigators. 35 These are aimed at confirming an infringement of IP rights or at gathering evidence for the
establishment of an infringement. 36 ‘Analysis of the application of Directive 2004/48/EC of the European Parliament and the Council of 29
April 2004 on the enforcement of intellectual property rights in the Member States’ (n 18) 24. 37 Van der Grinten (n 4).
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IP cases in the Netherlands and Poland where, under the previously existing system,
parties’ legal costs were compensated at a fixed rate.38
Accordingly, it is no coincidence that some of the first attempts to produce EU
and international civil procedure rules on disclosure and preservation of evidence,
interim relief, and costs allocation have followed a general, non-substantive law specific
approach. The first comprehensive attempt to create EU discovery rules goes back to the
1994 Storme Report on a draft European Code of Civil Procedure. Article 4 of the
Storme draft Directive imposed limited disclosure obligations on defendants or third
parties, to provide claimants with a list of the documents in their possession, custody, or
power, which are relevant to the disputed issue, and which have not previously been
communicated to these claimants. This obligation must be provided for in national
legislation or be ordered by the competent court, after the parties to the dispute have
been heard. What is more, Article 4.2.1 recognises the possibility for the defendant to
lodge a claim of privilege against disclosure or communication of certain documents in
accordance with the provisions of the national legislation. Similarly, the competent
court may relieve the defendant of the obligation to disclose certain documents, if it
considers that such an action would unduly harm the defendant.39
Moreover, Article 10 of the Storme draft Directive specified: the potential types
of provisional measures awards;40
the requirements for granting provisional remedies;
the primarily inter partes character of the procedure; court jurisdiction regarding the
application for provisional remedies; the availability of appellate review; the variation
or withdrawal of the remedy; the absence of res judicata and the possibility for
38 See inter alia, Tulibacka, ‘Europeanization of Civil Procedures: in Search of a Coherent Approach’ (n
22) 1548. 39 M Storme, Approximation of Judiciary Law in the European Union (Kluwer Academic Publishers
1994) 97. 40 It should be mentioned that in 2009, the Commission tendered a study on minimum standards for
provisional measures: Commission, ‘Study on minimum standards of procedural law’ (Contract Notice 2009/S 107-153954) http://ted.europa.eu/udl?uri=TED:NOTICE:153954-2009:TEXT:EN:HTML
accessed 05 December 2012. The Commission has also submitted its proposal for a European procedure
for the preservation of bank accounts: Commission, ‘Proposal for a Regulation Creating a European
Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters’
COM (2011) 445 final.
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annulment of the judgment; and, the enforcement of provisional measures.41
Finally,
Part 9.1 of the Directive confirmed the losing party pays principle, leaving national
procedural laws to determine the amount of recoverable legal costs. Part 9.2 is slightly
more specific compared to Article 14 IPRED in that it recognises the possibility for
non-reimbursement taking into account the losing party’s good faith or the uncertainty
of the applicable law, without offering further explanations as to the meaning of these
provisions.42
The ALI/UNIDROIT principles on transnational civil procedure rules in
commercial matters have also identified the importance of discovery rules for the
smooth functioning and effectiveness of procedural systems. They provide, in Article
16, a measure of limited discovery under the supervision of national courts. The court
should, upon claimants’ request, order defendants, or third parties to disclose relevant,
non-privileged, and reasonably identified evidence in their control or possession.43
Additionally, Article 8 of the ALI/UNIDROIT principles44
contains provisions on the
concept and types of provisional relief, the requirements for the award of provisional
measures, the rules of procedure, including the possibility for ex parte order in urgent
situations and where fairness so demands, as well as the duty for compensation in case
of unduly granted provisional relief.45
The overall scope of the ALI/UNIDROIT
principles is undoubtedly more restricted, compared to that of the Storme proposal,
focusing primarily on cross-border commercial disputes.46
Nevertheless, the regulatory
ambit of its rules on provisional and protective measures is again broader compared to
the IPRED and its confinement to a single field of EU action.47
41 Storme, Approximation of Judiciary Law in the European Union (n 39) 203-207. 42 Ibid, 143. 43 ALI/UNIDROIT, ‘Principles of Transnational Civil Procedure Law’ (2004) 4 Unif. L. Rev. 758, 788-
790. 44 Ibid, 772-774. 45 Ibid. 46 This is opposed to the draft Storme directive rules, designed to be applicable to both domestic and cross-border civil disputes. 47 For a more detailed analysis of all regional and universal efforts for approximation of provisional and
protective measures see inter alia, X E Kramer, ‘Harmonisation of Provisional and Protective Measures
in Europe’ in M Storme (ed), Procedural Laws in Europe. Towards Harmonisation (Maklu:
Antwerpen/Apeldoorn 2003) 305-319.
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Finally, Article 25 of the ALI/UNIDROIT principles contains a general
provision on legal costs, introducing the loser pays principle for the reimbursement of
all reasonably incurred legal expenses. In the second paragraph, it offers some
exceptions to the general rule. For instance, the reimbursement of the winning party’s
costs may be denied altogether, or substantially limited, to cover only the costs
associated with the genuine issues of the dispute. Similarly, winning parties may also be
ordered to pay the losing party’s legal costs in cases of procedural misconduct, which is
apparent when they have been unreasonably disputatious or have raised unnecessary
issues.48
5.2.2 Limitations of the IPRED
The trend towards sectoral harmonisation of core civil procedure rules
presumably stems from the necessity to circumvent opposition by Member States due to
intervention into their national procedural regimes. However, the sectoral character of
IPRED and its insistence on a law enforcement rationale, rather than harmonisation,
have not been capable of veiling the unavoidable interconnections between IP-specific
procedural rules on disclosure of evidence, provisional measures, and costs allocation,
and the general, national rules on the same procedural themes. As a result, the effects of
core IPRED provisions may be felt wider in the national civil justice system. This
explains the non-sector specific character of past European and international attempts
for the creation of civil procedure rules on the same matters.
The sectoral approach, evinced in the IPRED, is problematic for another reason;
by denying its harmonisation impact on national civil procedure rules, it essentially
over-emphasises the EU law enforcement objective in drafting the relevant sector-
specific rules. This tactic cannot promote greater access to justice in the EU based on
due consideration of the interests of the claimant in enforcing his claims and those of
the defendant in constraining such enforcement, and of the good administration of
justice in efficient proceedings. One important clarification is essential before
proceeding with the analysis further. Recital 32 confirms that IPRED seeks to comply
48 ALI/UNIDROIT (n 43) 802.
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with fundamental rights and principles as enshrined in the CFREU. Article 47 CFREU
has codified the right of access to justice, so IPRED should at least respect its
provisions, refraining from introducing rules that could actively violate them.
Additionally, Article 51 CFREU confers the duty to promote the application of the
Charter rights on EU institutions. I have argued that this provision calls for positive
actions by EU institutions to contribute practically to the realisation of the access to
justice guarantees, complementing individual adjudication to this point.49
It is this
proactive view for the promotion of the right of access to justice I will investigate
further in this section.
Against this backdrop, Article 2(1) IPRED, allowing Member States to
introduce or maintain measures that are ‘more favourable for right holders’, is
problematic. In the area of substantive law, such minimum standards may be more
easily accepted. However, in the procedural arena, the core procedural matters regulated
in the IPRED, touch on the fundamental right of access to justice. Giving the possibility
to Member States to individually and unjustifiably tilt the balance in favour of the right
holders with regard to the chance to gather evidence, seek the disclosure of information,
or the freezing of the opposing parties’ assets, hardly promotes the application of the
right of access to justice in the field of EU law. This is not an absolute right, and many
limitations can be accepted to the extent they do not erode the core of that right.
However, an unqualified mandate to Member States to provide a procedural regime that
is explicitly more favourable for the right holder cannot be easily justified.
Having said that, Article 2(1) IPRED should be read in conjunction with Article
3 IPRED, providing among others that:
Member States shall provide for the measures, procedures and remedies
necessary to ensure the enforcement of the intellectual property rights covered
by this Directive. Those measures, procedures and remedies shall be fair and
equitable and shall not be unnecessarily complicated or costly, or entail
unreasonable time-limits or unwarranted delays […] shall also be effective,
49 See above, ‘2.2 The constitutionalisation of the right of access to justice and repercussions for EU civil
procedure law’ 41.
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proportionate and dissuasive and shall be applied in such a manner as to avoid
the creation of barriers to legitimate trade and to provide for safeguards against
their abuse.
This provision imposes a general obligation on Member States to adopt implementing
measures in the area of IP rights litigation that actively secure the fairness of the
proceedings, and which strike the right balance between the interests of the claimant and
the defendant. They should also promote the accessibility of the judicial recourse,
guaranteeing reasonable legal costs, complexity, and duration of proceedings. Finally,
they should ensure the practical effectiveness of the actual remedial means.50
In other words, IPRED delegates the promotion of the right of access to justice
to the discretion of Member States. This stems from the sectoral approach of IPRED,
and the ensuing law enforcement rationale, which does not permit EU legislature to
consider both functions of civil procedure law, and which arguably are effectively
enunciated in the right of access to justice, hence promoting procedural fairness and
efficiency on top of access to courts for the vindication of individual rights. In
promoting the right of access to justice in the EU, the drafters of the IPRED procedural
rules should have opted for a particular balance of conflicting interests, limiting, where
necessary, the equality of arms between the parties or the right to an effective remedy in
a legitimate and proportionate manner.51
Allowing Member States to individually and
arbitrarily reverse this balance makes no sense; the initial balance is either capable of
promoting the EU ideas on the right of access to justice or not. If these rules need to
change to better reflect this EU idea of the right balance between stakeholders in the
area of IP rights protection, this should be done at an EU level.52
This can be illustrated with the case of Article 7 IPRED. Specifically, the seizure
of evidence on provision of securities is very broad, prone to irreversibly damaging the
defendants’ interests, constraining innovations based on existing IP rights under the
50 G Cumming, M Freudenthal, and R Janal, Enforcement of Intellectual Property Rights in Dutch,
English and German Civil Procedure (Kluwer Law International 2008) 65. 51 See, Wagner, ‘Harmonisation of Civil Procedure: Policy Perspectives’ (n 12) 110. 52 Ibid.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
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threat of prosecution of ‘harmless’ cases as opposed to more serious IP rights
infringements. The problem is that big companies can afford the securities asked by the
judicial authorities for the seizure of evidence, abusing this possibility in order to drive
smaller competitive companies out of business by the time the lack of any infringement
can be proved.53
In addition, in Article 6 IPRED, the main device to guarantee equality
of arms and the fairness of the proceedings, namely the defence of confidential
information, is disposed of without further ado.54
The reason for the limited effectiveness of the IPRED provisions is their
conceptualisation and promotion through the Internal Market legitimation tool.
Arguably, this was done to veil the general procedural character of the rules, so that
these could be extended to domestic disputes, as opposed to solely cross-border ones
under Article 81 TFEU.55
Although, in my view, the attempt to intervene in national
procedural regimes in both domestic and cross-border disputes is commendable, the
legal basis chosen, and the ensuing sectoral approach of minimum standard setting, has
limited the Directive’s reach. This is due to the impossibility of properly considering
procedural matters, drafting rules capable of actively promoting effective access to
justice considerations in the EU.56
The inherent limitations of the sectoral approach in promoting access to justice
even for the purpose of the enforcement of EU law becomes clearer by looking at the
current discussions on the review of the IPRED. Specifically, on 26 of April 2012, the
European Commission and the Presidency jointly organised a conference on the review
53 S M Kierkegaard, ‘Taking a sledgehammer to crack the nut: The EU Enforcement Directive’ (2005) 21
C.L.S.R. 488, 493. 54 ‘Report from the Commission to the European Parliament, the Council, the European Economic and
Social Committee and the Committee of the Regions Application of Directive 2004/48/EC of the
European Parliament and the Council of 29 April 2004 on the enforcement of intellectual property rights’
(n 23) 9: according to Article 18 IPRED, Member States shall provide the Commission with a report on
the implementation of the Directive by the end of April 2009. This report found that many provisions of
the Directive needed further refinement, such as the procedures to gather and preserve evidence, including the right balance between the right to evidence and protection of parties’ privacy. 55 See, E Storskrubb, Civil Procedure and EU Law, A Policy Area Uncovered (OUP 2008) 303-304; T
Andersson, ‘Harmonisation and Mutual Recognition: How to handle Mutual Distrust?’ in M Ardenas, B
Hess, and B Oberhammer (eds), Enforcement Agency Practice in Europe (BIICL 2005) 246. 56 See also, Van der Grinten (n 4) 14.
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of the IPRED provisions. Among the various issues discussed, many participants
underscored the necessity for the revised IPRED to cater for SMEs’ access to courts
through the establishment of an accessible system for funding litigation.57
This matter
goes to the heart of Member States’ procedural regimes but also to the heart of the
requirement for effective enforcement of IP rights; unless SMEs and individual right
holders can access courts to seek the termination of an on-going infringement or to
prevent an imminent one, substantive EU legislation on this broad area will remain
ineffectual. Legal costs and litigation funding opportunities are of paramount
importance from the perspective of access to the litigation process.58
However, the
concerns expressed in the conference included the unsuitability of a sectoral legislative
piece, such as IPRED, to regulate fundamental procedural matters such as the costs and
funding of litigation, and strike a fair balance between the interests of the claimant, the
defendant, and the good administration of justice.59
That the issue of litigation funding is not particular to IP rights adjudication
cases will be discussed below,60
when I will examine the on-going discussions in the
area of collective redress. An extensive debate has taken place with regard to the
funding mechanisms for group actions and specifically with regard to the availability of
contingency fees, or professional litigation funding companies. This is only natural,
especially in the current environment of deep economic crisis in the EU, constantly
squeezing budgets for legal assistance purposes, pushing towards alternative and less
burdensome for the national budgets, solutions, deemed even more important in all
categories of claims with high litigation costs.
I contend that only a general Treaty legal basis could offer adequate
constitutional and functional legitimacy for the creation of EU civil procedure rules
effectively promoting EU law enforcement and dispute resolution objectives, duly
57 Commission, ‘Report on Commission/Presidency Conference of 26 April 2012 on the Enforcement of
Intellectual Property Rights: the Review of Directive 2004/48/EC’ AF/na - ARES (2012) 712109 http://ec.europa.eu/internal_market/iprenforcement/docs/conference20120426/summary_en.pdf accessed
11 October 2012. 58 See above, ‘2.3.2.6 The obligation to provide legal aid’ 69. 59 Ibid. 60 See below, ‘5.4.2.3 Financing the EU collective redress mechanism’ 176.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
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considering the right of access to justice. Therefore, I have identified this potential in
Article 81(2)(e) TFEU, offering a general legal basis for civil justice cooperation
through the approximation of Member States’ laws and regulations for the promotion of
effective access to justice. Nonetheless, as will become apparent below, this proposition
presupposes a joint reading of the said Treaty provision and Article 47 CFREU on the
right to an effective remedy and a fair trial, presumably leading to an expansive
interpretation of the ‘cross-border implications’ requirement in the first paragraph of
Article 81 TFEU.61
5.3 Horizontal EU civil procedure rules: the example of the European Small
Claims Procedure
In the previous section, I argued that unless the fundamental procedural
guarantees stemming from the right of access to justice are duly considered, there could
be no realistic prospect for effective private enforcement of law. A sectoral approach
essentially inhibits this possibility by not offering adequate legitimacy to EU institutions
to consider the fundamental parameters of the right of access to justice. Producing rules
applicable solely to a specific category of claims, without any justification for this
limitation, leads to the replication of provisions in national procedural regimes, adding
to the complexity of litigation. More importantly, minimum sectoral intervention is
problematic for the additional reason that it fails to provide a definitive balance of
conflicting interests, with serious risks of over-enforcement of EU substantive
legislation, undermining procedural fairness and the efficiency of the justice system,
also guaranteed under the right of access to justice.
I contend that a systematic, horizontal consideration of the right of access to
justice in the area of private enforcement of EU law is needed. Therefore, in this
61 On the current limitations of Article 81 TFEU horizontal approach for the adoption of EU civil
procedure rules through the example of ESCP see below, ‘5.3 Horizontal EU civil procedure rules: the
example of the European Small Claims Procedure’ 150. On the implications of the joint reading of
Articles 81 TFEU and 47 CFREU for the interpretation of the ‘cross-border implications’ provision see
below, ‘6.3.2.2 ‘Cross-border implications’’ 202.
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section, I will consider a recent indicative example of horizontal EU civil procedure
rules, namely the EU Small Claims Procedure (ESCP). The preparatory works for the
introduction of the ESCP go back to the 1999 Tampere Conclusions. Accordingly, the
need to improve access to justice was emphasised to be achievable through, for
example, the drafting of ‘special common procedural rules for simplified and
accelerated cross-border litigation on small consumer and commercial claims’.62
The
need to simplify and speed up the settlement of cross-border litigation in small claims
was reiterated in the 2000 Mutual Recognition Programme,63
whilst the 2004 Hague
Programme urged the active pursuance of the work on small claims.64
The necessity for an EU small claims procedure stems from the lack of
proportionality between the cost, complexity, and duration of proceedings in cases of
low value claims, leading to insurmountable obstacles to legal proceedings. Especially
in the cross-border environment, costs can be even higher, due to the translation of
documents, travel expenses, the necessity to employ two lawyers – one from the
claimant’s jurisdiction and one from the foreign one where the adjudication of the
dispute takes place – and greater length of proceedings.65
Accordingly, the EU small
claims procedure was introduced with the aim of facilitating effective access to justice
in the EU through the simplification and speeding up of civil litigation.66
The majority
of the EU Member States had some form of small claims proceedings, either via
62 European Parliament, ‘Tampere European Council 15 and 16 October 1999 Presidency Conclusions’
(Tampere Milestones), Part B(V), paras 1.9.30 http://www.europarl.europa.eu/summits/tam_en.htm accessed 22 March 2013. 63 Council, ‘Draft Programme of Measures for Implementation of the Principle of Mutual Recognition of
Decisions in Civil and Commercial Matters’ [2001] OJ C12/1, 4. 64 Council, ‘The Hague Programme: Strengthening Freedom, Security and Justice in the European Union’
[2005] OJ C53/1, 13. 65 Commission, ‘Green Paper on a European Order for Payment Procedure and on Measures to simplify
and speed up Small Claims Litigation’ COM (2002) 746 final, 49. See also, Commission, ‘Annex to the
Regulation of the European Parliament and of the Council establishing a European Small Claims
Procedure: Extended Impact Assessment’ (staff working document) SEC (2005) 351, 15. The legal costs
for a cross-border claim with a value of € 2.000 could vary from €980 to €6.600. In terms of duration of
civil proceedings, these could last between 4 and 24 months depending on the Member State where litigation takes place. 66 ‘Annex to the Regulation of the European Parliament and of the Council establishing a European Small
Claims Procedure: Extended Impact Assessment’ (n 65) 8; Commission, ‘Annex to the Regulation of the
European Parliament and of the Council establishing a European Small Claims Procedure: Comments on
the Specific Articles of the Proposal’ SEC (2005) 352, 2.
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specific procedural rules, or via the possibility for simplification of the ordinary
proceedings in case of small claims.67
However, these rules were substantially different
from one Member State to the other, with deviations in areas such as the monetary
threshold for a claim to be regarded a small claim to the actual type and the scope of
claims for which these rules are available in national legal orders. In the EU legal order,
these deviations can be rather problematic; the existence of more efficient judicial
systems in one Member State compared to another constitutes a distortion of
competition in the Internal Market, as economic operators cannot compete on equal
footing.68
ESCP applies to civil and commercial matters excluding revenue, customs,
administrative matters, and State liability for acts and omissions in the exercise of State
authority.69
In terms of substantive matters, ESCP largely repeats the provisions of
Article 1 of the Brussels I Regulation, excluding from its regulatory scope: legal
capacity issues; property rights in matrimonial relationships; maintenance obligations;
wills and succession; bankruptcy; social security; and arbitration.70
It also excludes
matters relating to employment law; immovable property tenancies; privacy violations
and personality rights.71
Further, ESCP applies only to monetary or non-monetary
claims not exceeding €2.000 at the initiation of the procedure,72
and is only available as
an optional procedure for cross-border dispute resolution cases,73
existing in parallel
with Member States’ domestic small claims procedures.74
67 See: The Study Centre for Consumer Law – Centre for European Economic Law Katholieke
Universiteit Leuven, An analysis and evaluation of alternative means of consumer redress other than
redress through ordinary judicial proceedings – Final Report (2007) 197
http://ec.europa.eu/consumers/redress/reports_studies/comparative_report_en.pdf accessed 25 March
2013. According to the findings of this study, only five out of the 27 Member States do not have some
form of small claims procedure: Cyprus, Finland, Hungary, Latvia, and Slovakia. 68 Commission, ‘Proposal for a Regulation of the European Parliament and of the Council establishing a
European Small Claims Procedure’ (Explanatory Memorandum) COM (2005) 87 final, 6. See also above,
‘3.2.1 A level playing field in the Internal Market’ 75. 69 Article 2 ESCP. 70 Article 2(2)(a)-(e) ESCP. 71 Article 2(2)(f)-(h) ESCP. 72 Article 2(1) ESCP. On the actual calculation of the value of the claim, see Recital 10 ESCP. 73 Article 3 ESCP. 74 Recital 8 ESCP.
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This part will analyse whether the EU small claims regulation embodies
effective access to justice overtones. I will firstly provide some background information
on the adoption and drafting of the Regulation, only to demonstrate that it has been
modelled on the traditional international procedural law rationale. Moving on, I will
focus on the key provisions of the Regulation in the context of the fundamental right of
access to justice, in order to assess the potential of the Regulation to contribute towards
greater coherence in EU civil procedure law. I will argue that ESCP constitutes a
valuable first step in the right direction, which is nonetheless compromised by the
unjustifiably narrowly perceived and construed legal basis of Article 81 TFEU. I will
investigate this theme in more detail in Chapter 6.
5.3.1 Key features of the Small Claims Procedure in the Context of the Right of Access
to Justice
ESCP contains various provisions pertinent to PIL, enshrined in its territorial,
substantive, and personal scope of application, as well as in provisions for the co-
ordination and communication of foreign legal orders.75
However, as will become clear
in this sub-section, ESCP does not constitute a traditional instrument of private
international procedural law. The majority of its provisions introduce genuine EU civil
procedure rules on fundamental aspects of the judicial process, from the institution of
proceedings through the enforcement of the court judgment. In other words, ESCP has
introduced rules for the entire enforcement phenomenon, facilitating effective dispute
resolution and with it, enforcement of EU law rights and obligations, using as a
yardstick the right to an effective remedy and a fair trial.
75 According to Carruthers, North, and Fawcett, Private International Law is that part of a national legal
order that comes into operation whenever the court is faced with a claim that contains a foreign element.
PIL prescribes the conditions for a court to entertain such a claim (jurisdiction), determines the particular
municipal system of law for the review of parties’ substantive rights (applicable law), and specifies the
circumstances for the recognition and enforcement of a foreign judgment in the domestic legal order. See, J J Fawcett, J M Carruthers, and P North, Cheshire, North & Fawcett: Private International Law (14th
edn, OUP 2008) 3-4. On the gradual shift from harmonising private international law to harmonising civil
procedure law in the EU see, inter alia: X E Kramer, ‘Harmonisation of Civil Procedure and the
Interaction with Private International Law’ in X E Kramer and C H van Rhee (eds), Civil Litigation in a
Globalising World (T.M.C. Asser Press 2012) 121.
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ESCP has introduced the technique of standard forms for the institution of
proceedings: the claimant should lodge a standard claim form with the competent
court;76
the defendant should respond to the claim, using the standard answer form;77
finally, the claimant should respond to potential counterclaims lodged by the defendant
via the standard claim form.78
This technique facilitates access to courts via simplified
procedural rules.79
Additionally, ESCP comes with specific language requirements for
the standard forms80
and enclosed documents,81
guaranteeing fair, timely, and
adversarial proceedings, and offering the parties a realistic opportunity to be informed
about and comment on all relevant documents, lodging counter-claims where
appropriate.82
Additionally, ESCP has introduced a streamlined judicial process,83
contributing
to the requirement for timely justice, beneficial for all parties to the dispute, and the
general good administration of justice.84
Depending on the complexity of the case, the
conclusion of the EU small claims procedure can take place within as little time as 30
days from receipt of the response from the defendant. This timeframe can substantially
increase in cases of the submission of counterclaims, if an oral hearing is deemed
necessary,85
or if evidence taking or submission of further details by the parties
becomes essential.86
ESCP has also introduced a pre-eminent written procedure for the adjudication
of presumably simple, low value claims.87
This could contribute to the reduction of the
76 Article 4 ESCP; Annex I ESCP. 77 Article 5(3) ESCP. 78 Article 5(6)(b) ESCP. 79 In the context of ECHR: Golder v. United Kingdom App no 4451/70 (ECtHR, 21 February 1975), para
35; Airey v. Ireland App no 6289/73 (ECtHR, 9 October 1979); Chevrol v. France App no 49636/99
(ECtHR, 13 February 2003). 80 Article 6(1) ESCP. 81 Article 6(2), (3) ESCP. 82 In the ECHR context: Ruiz-Mateos v. Spain App no 12952/87 (ECtHR, 23 June 1993), para 63. See
also above, ‘2.3.2.2 The obligation for a fair hearing’ 61. 83 Article 5(2)(b), (3), (4), (6)(b) ESCP. See however, Article 14 ESCP. 84 See text, case law, and references above, ‘2.3.2.4 The ‘reasonable time’ requirement’ 64. 85 This translates in another 30 days to summon the parties and extra 30 days to deliver a judgment. 86 Article 7 ESCP: this cannot prolong proceedings for more than an additional 30-days’ time. 87 Article 5(1) ESCP.
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costs associated with oral hearings and invite of experts and witnesses, also reducing the
length of proceedings.88
Nevertheless, Article 5 ESCP provides certain exceptions to the
written procedure principle. This could happen if the judging court considers that an
oral hearing would be more appropriate for the resolution of the dispute, or if the
litigants themselves lodge such a request, provided the court shares their views on the
necessity for an oral hearing.89
As the right to an oral hearing is not absolute,90
ESCP
rightfully limits this possibility, but maintains ample room for an oral hearing in
complicated cases, allowing parties to be present at the proceedings, and explain the
circumstances of the case in more detail.91
More importantly, if the court does not share
the litigants’ views on the necessity for an oral hearing, it must offer a reasoned refusal,
which also contributes to the fairness of the proceedings.92
In an attempt to limit legal expenses, by simplifying the procedure, the ESCP
does not require representation by a legal professional.93
In order to encourage
claimants not to employ legal representatives, ESCP does not oblige them to provide the
competent court with any legal assessment of their claim. On the contrary, it is for the
court to construe the legal classification and ramifications of each claim, which also
assists parties with procedural matters.94
However, the possibility to employ a lawyer is
always open in complicated cases, with the costs shifting rule in Article 16 ESCP
guaranteeing that in case of success the losing party will reimburse the winning party’s
lawyer fees.95
88 According to Article 9(1) ESCP, judging courts may take into account written witness-, expert-, or
party-statements. 89 The claimant is specifically asked in point 8.3. of the Claim form A whether he/she would rather an
oral hearing, whereas point 3. in the Answer form C offers the same possibility for the defendant too. See
also, Article 8 ESCP on the use of Modern Communication Technology for the conduct of oral hearings. 90 For more information on the public hearing as a constituent element of the right of access to justice, see
text, case law, and references above, ‘2.3.2.3 The requirement for a public hearing’ 63. 91 Even in oral hearings, ESCP remains preoccupied with access to justice requirements for timely and at
reasonable cost proceedings. According to Article 9 ESCP and Recital 20 ESCP, in case of oral hearings
the court may accept evidence via means of modern information and communication technology, hence using the ‘simplest and least burdensome method of taking evidence’. 92 See also, Hess, Europäisches Zivilprozessrecht (C.F. Müller 2010) 577-578. 93 Article 10 ESCP. 94 Article 12(1), (2) ESCP. 95 Unless the legal costs are disproportionate to the claim or unnecessarily incurred.
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Furthermore, ESCP court judgments should be enforceable in the domestic legal
order, regardless of any possibility for appeal, and without the provision of security for
that purpose.96
ESCP thus creates legal certainty, guaranteeing the finality of civil
proceedings, giving an end to the dispute (res judicata).97
Nevertheless, ESCP has
introduced certain possibilities for judicial review where there has been no proof of
receipt for the service of essential documents, the service of documents did not take
place in sufficient time for the defendant to prepare his case without any fault on his/her
part, or the defendant failed to lodge a defence due to force majeure. Provided the
defendant acted promptly, the competent court might declare the initial judgment null
and void and reconsider the case anew.98
This provision depicts strong considerations of
procedural fairness and equality of arms, guaranteeing that the defendant will not be
severely disadvantaged by the final judgment rendered through the small claims
procedure.99
Linked with the demand for legal certainty is the need to execute final
judgments, which is essential to guarantee the practical value of the right to a court.100
ESCP promotes the acceleration of dispute resolution and the reduction of the legal
costs via the abolition of the recognition and enforcement procedures. Similarly, the
exhaustive determination of the acceptable grounds for refusal of enforcement in a
foreign jurisdiction contributes to swift and at reasonable cost proceedings.101
If a
litigant challenges the judgment or if it is still possible to challenge it, enforcement
96 Article 15 ESCP. 97 In the ECHR context: Bujnita v Moldova App no 36492/02 (ECtHR, 16 January 2007), para 23:
quashing a final judgment without new evidence is against Article 6(1) ECHR. 98 Article 18 ESCP; Recital 31 ESCP. 99 On the principle of equality of arms see text, case law, and references above, ‘2.3.2.2 The obligation for
a fair hearing’ 61. 100 On the requirement for timely execution of judgments as an aspect of the right of access to courts see text, case law, and references above, ‘2.3.2.1 The requirement for access to the courts’ 58. 101 According to Article 22(1) ESCP, this can occur only in cases of conflict with an earlier judgment
issued by the courts of an EU Member State or third country, provided it involved the same parties and
the same cause of action, and that the litigants could not have raised this conflict before the courts of the
Member State that issued the contested decision.
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proceedings may take the form of protective measures, may continue provided the
litigant offers adequate security, or even proceed without further ado.102
5.3.2 Restrictions of the ESCP
The EU legislature has tried to consider ESCP in a holistic fashion, including all
procedural elements of material importance for the private enforcement of claims and
the resolution of disputes. It has provided rules for the simplified commencement of
proceedings through standard forms, ICT opportunities, practical assistance to litigants,
and the streamlining of proceedings. In doing so, it has filtered individual provisions
through the right to a fair trial, catering for both the claimants’ and the defendants’
rights to procedural efficiency and fairness. Therefore, it has provided litigants with a
realistic opportunity for an oral hearing, adopting defendant-centred rules on the service
of documents, and providing them with the possibility for judicial review of the
judgment.103
Despite positive steps for the promotion of effective access to justice in the EU,
ESCP raises serious concerns too. These are mainly associated with the legal basis and
mode of EU intervention in national procedural regimes for the creation of the ESCP.
Specifically, the limitation of the application of the ESCP to cross-border disputes, as an
alternative to national small claims procedures compromise the overall positive
ramifications of the ESCP for the fundamental right of access to justice, sapping the
future success and coherence of the EU procedure as a whole.
5.3.2.1 Cross-border-disputes limitation
ESCP applies solely to cross-border disputes. Presumably, this limitation
follows from the general policy area on civil justice cooperation and Article 81 TFEU
referring to civil matters with ‘cross-border implications’.104
It is also in line with the
private international law orientation that initial measures in the policy area used to have.
However, if a strict PIL perspective had been adopted, the only rational EU provision
102 Article 23 ESCP. 103 See X E Kramer, ‘The European Small Claims Procedure: Striking the Balance between Simplicity
and Fairness in European Litigation’ (2008) 2 ZeuP 370. 104 On the actual meaning and interpretation of the ‘cross-border’ reference in Article 81 TFEU see
below, ‘6.3.2.2 ‘Cross-border implications’’ 202.
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would have been the one following from mutual recognition of judicial decisions,
through the abolition of the exequatur. This is essentially what the Legal Service of the
Council of the European Union has also opined with regard to the legal basis of Article
65 EC for the introduction of an autonomous procedure in Member States.105
Accordingly, it is striking that ESCP proves particularly ineffective with regard
to cross-border disputes, since the provisions aimed at costs limitation and expeditious
proceedings do not seem far-reaching enough in the cross-border environment. For
instance, using standard forms to initiate proceedings could be tremendously effective
in domestic disputes over EU law rights, where there would be no language barriers. In
the cross-border environment however, despite the considerable simplification of
proceedings due to the introduction of the standard forms, the necessity to fill them in a
foreign language could increase expenses rendering official document translation
necessary.106
Nonetheless, language requirements seem less problematic in the context
of Article 21(2)(b) ESCP and the enforcement of foreign judgments, as many Member
States accept judgments in English, or English and one or more other languages.107
The cross-border limitation is problematic from another perspective too:
apparently purely domestic disputes (where both litigants are habitually resident in the
same Member State of the court seized) might still have ‘cross-border implications’ if
the winning party seeks enforcement of the decision in a foreign jurisdiction.108
What is
105 Council, ‘Proposal for a Regulation of the European Parliament and of the Council establishing a European Small Claims Procedure − Legal basis’ (Opinion of the Legal Service) 10748/05, 5-6. 106 According to the recent ECC-Net Report on the application of the ESCP in the Member States for the
enforcement of cross-border consumer claims, 24% of the respondents indicated that ESCP is ‘subject to
various charges (ranging from €15-200), such as stamp-duty, expert fees, or translation costs, as claims
together with supporting documents, in some cases, should be translated into a different language’: ECC-
Net, ‘European Small Claims Procedure Report’ (2012) 21
http://ec.europa.eu/consumers/ecc/docs/small_claims_210992012_en.pdf accessed 13 December 2012. 107 See, European Judicial Atlas in Civil Matters,
http://ec.europa.eu/justice_home/judicialatlascivil/html/sc_courtsappeal_en.jsp?countrySession=15&#stat
ePage0 accessed 15 February 2013: Czech Republic (Slovak and English); Estonia (English); Finland
(Swedish and English); France (English, German, Italian, and Spanish); Ireland (English); Luxembourg (German and French); Malta (English); Slovenia (Italian and Hungarian). 108 ‘Green Paper on a European Order for Payment Procedure and on Measures to simplify and speed up
Small Claims Litigation’ (n 65) 6; European Economic and Social Committee, ‘Proposal for a Regulation
of the European Parliament and of the Council establishing a European Small Claims Procedure’
(Opinion) [2006] OJ C 88/61, 63: the EU small claims procedure should apply to domestic disputes in
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more, parties habitually residing in a Member State other than the Member State whose
court is seized of the dispute will have access to the simplified and swift EU small
claims procedure. On the contrary, litigants residing in the same Member State of the
court seized of the matter might not have any opportunity for a simplified procedure
even if the dispute relates to the same EU legal matter.109
By limiting the application of
the ESCP to cross-border disputes, the application of the right to an effective remedy is
equally limited to the adjudication of EU rights between litigants habitually residing in
different Member States. This contradicts the explicit wording and rationale of Article
47(1) CFREU, considerably curtailing EU citizens’ right to effective remedy under
equal conditions regardless of the Member State they reside in.110
It constitutes an
unjustifiable source of fragmentation of civil procedure law, leading to multiplicity of
procedures and grave uncertainties.111
Evidently, the predecessor provision of Article 81 TFEU, namely Article 65 EC,
had different content at the time of drafting and introduction of the ESCP. The same
holds true for the Charter and Article 47 CFREU, which acquired binding force and the
status of primary EU law only after the enactment of the Lisbon Treaty in 2009. I will
examine these developments in more detail in the next chapter,112
investigating the
implications of the post-Lisbon legal basis of Article 81 TFEU for the systematic
[Footnotes continued on next page]
order to justify the necessity for such an optional mechanism. This refers to the number of cases that it
will address that will be of a low amount unless domestic disputes are also included in the procedure’s
regulatory scope. See also, ‘Annex to the Regulation of the European Parliament and of the Council establishing a European Small Claims Procedure: Extended Impact Assessment’ (n 65) 12-13. Storskrubb
also mentions the example of a claimant wishing to commence EU small claims proceedings against two
defendants, one of whom domiciles locally while the other resides in another Member State. She argues
that the EU small claims procedure is applicable only with regard to the defendant residing abroad,
leaving only domestic (if any) small claims procedures as a possible avenue with respect to the defendant
domiciled in the same Member State as the claimant. However, in my opinion, this case falls within the
scope of Article 3(1) ESCP on the meaning of ‘cross-border cases’, providing that at least one party to the
dispute should domicile or habitually reside in a Member State other than that of the court seized of the
matter. See, Storskrubb (n 55) 273. 109 See: C M G Himsworth, ‘Things Fall Apart: the Harmonisation of Community Judicial Procedural
Protection Revisited’ (1997) 22(4) ELR 291, 309; M Storme, ‘Improving Access to Justice in the Europe’ (2010) Teka Kom. Praw. – OL PAN 207, 214. 110 Tampere Milestones (n 62) point 5. 111 See, J Hill, Cross-Border Consumer Contracts (OUP 2008) 169. 112 See below, ‘6 The Horizontal Approach to EU Civil Procedure Law Reconceptualised: Achieving
Greater Coherence’ 184.
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promotion of access to justice considerations, leading to greater coherence in EU civil
procedure law. It will be interesting to see whether legislators will take into account
these developments in the upcoming revision of the Small Claims Regulation.113
5.3.2.2 Minimum procedural standards
Consistent with the methodology of PIL instruments and the mutual recognition
programme, ESCP sets certain minimum procedural standards that all Member States
should respect, such as rules for the service of documents, for judicial review,
reimbursement of legal costs, etc. This implies that the final format of the EU small
claims procedure will be considerably different from one Member State to the other,114
leading to divergent levels of access to justice for the safeguarding of the same EU
rights from one Member State to the other. This situation not only fails to promote
effective access to justice in the EU, but also obscures civil proceedings in the Member
States even more, rendering it difficult to undertake an overall estimation of the most
beneficial procedure for the resolution of a dispute.
To begin with, considerations of fairness of the trial and protection of the
litigants’ interests can justify certain expansions of procedural time limits for the
various steps of the judicial process. Timely justice should also cater for the correctness
and accuracy of the decision. However, the reference in the ESCP to ‘exceptional
circumstances’ that might obstruct courts from conforming to the procedural time limits
113 Article 28 ESCP. See also, Select Committee on European Union, ‘Minutes of Evidence: Examination of Witness Georg Haibach (Questions 1-19)’ (2005)
http://www.publications.parliament.uk/pa/ld200506/ldselect/ldeucom/118/5101902.htm accessed 21
March 2013. Georg Haibach (DG Justice, Freedom, and Security, Commission) expressly stated that
accepting a limitation of the Regulation to cross-border cases only should not prejudice future legal
interpretation of the legal basis of Article 65 EC (now 81 TFEU) by the Commission. G Haibach, ‘The
Commission Proposal for a Regulation Establishing a European Small Claims Procedure: An Analysis’
(2005) 4 E.R.P.L. 596-597. However, judging from the questions in the on-going Consultation on the
application of the ESCP, the review of its territorial scope is not of primary concern. See, Commission,
‘Public consultation on the European Small Claims Procedure’
6http://ec.europa.eu/justice/newsroom/civil/opinion/files/20130318/small_claims_en.pdf accessed 31
March 2013. 114 ‘Annex to the Regulation of the European Parliament and of the Council establishing a European
Small Claims Procedure: Extended Impact Assessment’ (n 65) 17: ‘the participants’ experience of (the
European Small Claims Procedure) and the costs borne by the parties will vary from Member State to
Member State because the issues not directly addressed by the Regulation will be subject to national laws
which vary widely’.
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established seems too broad and might lead to abuse of this exception. This is probably
the reason why the initial Commission proposal provided for a maximum length of
small claims proceedings, of no more than six months from receipt of the claim.115
The
recently launched Public Consultation on the application of the ESCP addresses this
issue in Question 6, seeking views on the lack of sanctions for non-observance of the
various time limits by national courts.116
In addition, the grounds for judicial review involve solely restrictive
circumstances (such as inappropriate service of documents or proceedings and force
majeure or exceptional circumstances) that have prevented the defendant from properly
responding to the claim. I have argued that this provision embodies fundamental
considerations of fair trial through the respect of the rights of the defence to be heard.117
However, ESCP provides no further specifications with regard to the interpretation and
application of Article 18 ESCP.118
As a result, the provisions of this Article will vary
considerably across the Member States, depending on national understandings, sapping
the possibilities for qualified enforcement emanating from the right to an effective
remedy and to a court and filtered through the guarantees of procedural fairness and
good administration of justice.
Interlinked with the possibility for judicial review in the ESCP is the availability
of appeal avenues. Although the right of access to justice does not require the existence
of appeal proceedings as such, where appeal rights are provided, the guarantees of
procedural fairness and good administration of justice should also be applicable.119
Unfortunately, Article 17 ESCP makes no provision regarding appeal possibilities other
115 ‘Annex to the Regulation of the European Parliament and of the Council establishing a European
Small Claims Procedure: Comments on the Specific Articles of the Proposal’ (n 66) 6. 116 ‘Public consultation on the European Small Claims Procedure’ (n 113) 6. 117 See to that effect, Recital 31 ESCP. 118 X E Kramer, ‘Small claim, simple recovery? The European small claims procedure and its implementation in the member states’ (2011) 12(1) ERA Forum 119, 127
http://www.springerlink.com/content/88w50426x5135h38/fulltext.pdf accessed 27 March 2013. 119 By analogy from ECHR: Delcourt v. Belgium, App No. 2689/65 (ECtHR, 17 January 1970), para 25:
Article 6 ECHR does not include a right to appeal. However, when a legal order provides such a right,
this should comply with the procedural guarantees of a fair trial.
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than it is for national procedural rules to regulate that.120
Member States should inform
the Commission of the existence or lack of such a possibility. It follows that, under the
current scheme, ESCP will have considerable deviations from one Member State to the
other, affecting both the overall duration of the proceedings as well as the overall
costs.121
In other words, diverging appeal rules are problematic in terms of effective and
equitable redress of small claims.122
This is exacerbated by another parameter; it is unclear whether the main
procedural rules regulating the first instance judicial process should also apply to appeal
proceedings.123
Kramer mentions the example of an exequatur and the question whether
judgments pursuant to appeal proceedings will also constitute European titles
enforceable without an exequatur. However, as ESCP entails no provisions on appeal
proceedings, national appeal procedures would essentially result in a European title.124
Another example comes from the appeal rules in Austria. Specifically, a party to the
first instance ESCP dispute can lodge an appeal in writing within four weeks. A lawyer
must sign this appeal, also representing the party lodging the appeal at the subsequent
appeal proceedings. This provision is in conflict with the optional lawyer representation
120 See, ‘Annex to the Regulation of the European Parliament and of the Council establishing a European
Small Claims Procedure: Comments on the Specific Articles of the Proposal’ (n 66) 7. 121 See: Kramer, ‘The European Small Claims Procedure: Striking the Balance between Simplicity and Fairness in European Litigation’ (n 103) 369; M Loos, ‘Individual Private Enforcement of Consumer
Rights in Civil Courts in Europe’ in R Brownsword, H W Micklitz, L Niglia, and S Weatherill (eds), The
Foundations of European Private Law (Hart Publishing 2011) 507. Specifically, according to information
on EU Judicial Atlas in Civil matters, in France there is a possibility for an extraordinary appeal before
the Court of Cassation. In Spain, appeal can take place within 25 days after the first instance judgment. In
Germany, appeals can be lodged within 1 month after the notification of the first instance judgment. In
Italy, there is a possibility for an appeal against the first instance judgment within 30 days, and an appeal
in cassation within 60 days. In Sweden, appeals should be lodged with 3 weeks and appeals in cassation
within 4 weeks. In Bulgaria, appeals can be lodged within 2 weeks and appeals in cassation within 4
weeks. In both Romania and Hungary, appeals should be lodged within 15 days, whereas in Slovenia, the
time limit for appeal is 8 days and another 8 days for appeals in cassation. 122 Kramer, ‘Small claim, simple recovery? The European small claims procedure and its implementation
in the member states’ (n 118) 126-127. 123 This is with the exception of the loser pays rule, which explicitly applies to appeal proceedings too. 124 Kramer, ‘Small claim, simple recovery? The European small claims procedure and its implementation
in the member states’ (n 118) 126-127.
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scheme of the ESCP, aimed at the limitation of adjudication costs, and through that, the
promotion of access to justice in disputes with low value claims.125
Finally, Article 16 ESCP provides that, in principle, the loser pays the costs of
the proceedings. The court or tribunal can limit the winning party’s costs reimbursement
where these have been disproportionate to the disputed claim or unnecessarily incurred.
This minimum rule is rather problematic when seen in the context of the overall
objective of the ESCP to provide simple, expedited and at reasonable costs proceedings.
Cost allocation systems are of tremendous importance from an access to justice
perspective, as they influence litigation expenses and litigants’ incentive to pursue
meritorious claims. However, Article 16 ESCP is not specific enough and can lead to
great divergences from one Member State to the other. Even recital 29 ESCP, which
offers some further indications as to the occasions where cost shifting may be limited,
such as in case of unnecessary or disproportionate use of a lawyer, or requirement for
document translation, is not determinate enough. Considerable differences in such a
fundamental parameter of access to justice could affect the overall effectiveness and
success of the ESCP, and its capacity to facilitate the enforcement of EU law.126
This is
presumably the reason why under an earlier version of the ESPC, the losing party who
had not employed legal assistance himself was exempted from the obligation to
reimburse the successful party’s lawyer expenses.127
5.3.2.3 An optional instrument as a transitional system?
The EU small claims procedure exists in parallel with Member States’ domestic
small claims mechanisms and procedural rules, leaving the latter untouched. This is the
least intrusive measure, since it vests Member States with the obligation to make this
mechanism available for cross-border disputes only. This leads to a multiplication of
125 See, European Judicial Atlas in Civil Matters (n 107). 126 Loos (n 121) 506. On the distinction between uniformity and effectiveness as the raison d’etre for EU
intervention in national procedural and remedial regimes see, inter alia: M Dougan, National Remedies
Before the Court of Justice: Issues of Harmonisation and Differentiation (Hart Publishing 2004) 220-225. Dougan recognises that a minimum harmonisation approach for the promotion of the effective application
of substantive EU law in domestic legal orders may require a high level of EU intervention in the
domestic systems of judicial protection. 127 ‘Proposal for a Regulation of the European Parliament and of the Council establishing a European
Small Claims Procedure’ (Explanatory Memorandum) (n 68) 16.
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national procedural rules for small claims dispute resolution; one can discern national
small claims rules applicable to domestic and/or cross-border disputes, as well as EU
originated rules applicable to cross-border disputes only.
Literature often refers to optional instruments as a ‘29th
regime' on top of
Member States’ procedural regimes.128
However, speaking of a ‘2nd
regime’, alternative
to national procedural systems, would be more accurate.129
This suggests that Member
States need to provide that alternative, EU-originated regime, in their national legal
orders in the form of an additional, second set of procedural rules that litigants can
choose for the resolution of their disputes.130
This is particularly important in the realm
of procedural law, where, unlike substantive law, parties can hardly influence the lex
fori. Citizens can then choose, either ex ante or ex post, whether they will pursue
dispute resolution in a specific Member State pursuant to the domestic small claims
procedures, or to the EU-originated small claims mechanism.131
Presumably, litigants will be in a position to compare the available alternatives
in national legal orders and subsequently make the most beneficial choice. Litigants
should be able to form a rough opinion on the most effective procedure, based on the
key elements of small claims procedures, such as legal representation, expected
duration, written procedure, and enforcement procedure. As a result, the introduction of
the optional instrument could be seen as a transitional civil procedure system, enabling
128 See for example in the context of EU contract law: Commission, ‘Green Paper from the Commission on policy options for progress towards a European Contract Law for consumers and businesses’ COM
(2010) 348 final, 9-10. 129 In the context of EU contract law: M Behar-Touchais, ‘Interplay between an optional instrument and
national laws’ (PE 425.645, 2010) 16-17
http://www.europarl.europa.eu/webnp/webdav/site/myjahiasite/users/emartinezdealosmoner/public/Behar
-Touchais%20EN.pdf accessed 27 March 2013. 130 Many Member States have attempted to make the EU small claims procedure available in their
national legal orders via detailed implementation laws fully incorporated in their domestic procedural
systems: England and Wales (Part 78 CPR and 78 PD); France (Articles 1382–1392 CPC); Germany
(§§1097–1109 ZPO). Other Member States have adopted a separate implementation act: the Netherlands
(Articles 1-11, Uitvoeringswet verordening Europese procedure voor geringe vorderingen); Ireland (S.I. No. 533 of 2008). On the issue of implementation of the EU small claims procedure see, Kramer, ‘Small
claim, simple recovery? The European small claims procedure and its implementation in the member
states’ (n 118) 119–133. 131 On the added value of multiple choice in private law via optional instruments see, J M Smits,
‘Optional Law: A Plea for Multiple Choice in Private Law’ (2010) 17(4) MJ 350-352.
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a tailored, customised litigation of civil disputes that can accommodate diverse
interests,132
thus allowing for a gradual integration of national procedures.133
However,
the findings of the recent ECC Net report on the application of the European Small
Claims Procedure do not support this view.134
Specifically, the report shows that the
ESCP is not widely known, among either the prospective litigants, or the national
judges that will have to apply it.135
As a result, the standard forms are not available on
either the courts’ premises or their websites in many Member States (Article 4(5)
ESCP),136
whereas prospective litigants often cannot get the practical legal assistance,
which Article 11 ESCP purportedly guarantees.137
These findings suggest that ESCP
does not yet constitute a realistic alternative prospective litigants could opt for.138
Having said that, it will be interesting to see whether the on-going Consultation on the
ESCP will come up with similar findings, and if so, how it will try to address them.139
5.4 What is next? Towards a coherent approach to collective redress
The EU introduced the ESCP with the objective of facilitating equivalent access
to justice via the simplification of procedural rules, the limitation of the length of civil
proceedings and subsequently, the reduction of the legal costs involved. Current
discussions on the introduction of an EU mechanism of collective redress are also aimed
132 ‘Annex to the Regulation of the European Parliament and of the Council establishing a European Small Claims Procedure: Extended Impact Assessment’ (n 65) 18: other factors that will weigh in the
choice of the existing or new small claims procedure are the treatment of evidence, the process of
enforcement, and potential uncertainties. 133 M Storme, ‘A Single Civil Procedure for Europe: A Cathedral Builders’ Dream’ (2005) 22 RLR 87,
93. 134 ‘European Small Claims Procedure Report’ (n 106). 135 Ibid: 47% of the courts and the judges had no knowledge about the application of the ESCP (Chart No.
1). 136 In 41% of the investigated courts, the standard forms were not available at all (Chart No. 2). 137 In 41% of the participating Member States there was no assistance available (Chart No. 3). 138 The report is based on questionnaires filled in by national European Consumer Centres after contacting national courts either onsite or via telephone and pursuant to meetings with competent judges. The
questionnaires were drafted by a working group, composed by ECC Italy, Lithuania, Estonia, and Poland,
and validated by DG SANCO and DG JUSTICE. No further quantitative and qualitative criteria and
methodological information are provided, which compromises the actual value of the report. 139 ‘Public consultation on the European Small Claims Procedure’ (n 113).
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at facilitating effective access to justice in the EU.140
Collective redress rests upon the
realisation that in certain cases, violations of EU law rights and obligations can have
negative repercussions for many individuals in the same, or various, Member States.
Business practices breaching EU law provisions can inflict a loss that is collectively
large, but individually small because it is dispersed. Judicial enforcement of these rights
on an individual basis is neither a realistic nor an effective means of redress due to
disproportionately high litigation costs compared to the actual harm caused.141
Such a
scenario would also be detrimental to the overall efficiency of the judicial system,
where damages claims stemming from the same unlawful business practices overload
national courts.
The term ‘collective redress’ is a broad one, encompassing litigation aiming at
the termination of unlawful practices, as well as at compensation for the harm caused by
such practices.142
For the purposes of the current analysis I will only focus on the latter,
namely the compensatory collective redress. I will submit that recent developments in
this area indicate a shift towards greater horizontality in civil procedure harmonisation
in the EU, inspired by an effort to promote effective access to justice considerations in
addressing the key challenges for a future EU instrument of collective redress, namely
the opt-in or opt-out character of proceedings and the subsequent binding effect of court
decisions, the rules of legal standing, the funding of collective proceedings, and the
reimbursement of legal costs.
5.4.1 On horizontality
The initial EU approach to collective redress was sector-specific, with the
Commission preparing separate legislative proposals in the area of competition law, and
also investigating the prospects for distinct provisions for consumer claims.
140 Commission, ‘Public Consultation: Towards a Coherent European Approach to Collective Redress’
(Staff Working Document) SEC (2011) 173. 141 Ibid, 3. See, H W Micklitz and A Stadler, ‘The Development of Collective Legal Actions in Europe,
Especially in German Civil Procedure’ (2006) E.B.L.R. 1476-1477. 142 ‘Public Consultation: Towards a Coherent European Approach to Collective Redress’ (Staff Working
Document) (n 141); ‘An analysis and evaluation of alternative means of consumer redress other than
redress through ordinary judicial proceedings – Final Report’ (n 67) 260.
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Specifically, it issued a Green143
and a White144
Paper on damages actions in anti-trust
cases investigating among others, the necessity for representative and opt-in collective
actions in parallel with individual actions.145
It also adopted a Green Paper on consumer
collective redress.146
The principal consideration behind these developments has been
the necessity to ensure that citizens and businesses can reap the benefits of the Internal
Market and the Area of Justice147
enforcing their rights guaranteed under EU law all
over the EU as easily as in their domestic legal systems.
However, the adoption of one set of procedural rules for the enforcement of EU
competition law rights and another, different one, for EU law consumer rights cannot be
easily justified. Collective redress systems are necessary for the private enforcement of
EU rights in both competition and consumer protection cases. Anti-competitive
practices may inflict small losses on many individuals, as could unfair commercial
practices by affecting many consumers. Individual private enforcement in both these
areas of EU law may not be a realistic option due to, inter alia, the costs involved. More
importantly, there is an overlap between consumer and competition law cases, where
consumers are the victims of anti-competitive behaviour. In order to produce EU rules
of civil procedure in these areas, one needs to take into account all of these
commonalities.148
This will also facilitate the establishment of EU civil procedure rules
that will operate harmoniously with the remaining domestic provisions of States' civil
procedures.149
Therefore, the latest Commission Public Consultation on collective actions for
damages and the report of the European Parliament on the same issue openly call for
143 Commission, ‘Green Paper on Damages actions for breach of the EC antitrust rules’ COM (2005) 672
final. 144 ‘White Paper on Damages actions for breach of the EC antitrust rules’ (n 6). 145 ‘White Paper on Damages actions for breach of the EC antitrust rules’ (Staff Working Document) (n
6) 21. 146 ‘Green Paper on Consumer Collective Redress’ (n 6). 147 Commission ‘Europe 2020: A strategy for smart, sustainable and inclusive growth’ (Communication) COM (2010) 2020, 19-21; Council, ‘The Stockholm Programme — An open and secure Europe serving
and protecting citizens’ [2010] OJ C 115/01. 148 Van der Grinten (n 4) 14. 149 This is verified in the recently launched public horizontal consultation entitled ‘Public Consultation:
Towards a Coherent European Approach to Collective Redress’ (Staff Working Document) (n 141) 4-5.
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coherence and horizontality.150
The 2012 Commission programming is also quite
indicative of the way forward in the area of collective redress. It had envisaged the
release of a horizontal instrument on collective redress as a means of recourse to the
courts for the private enforcement of law by the end of 2012. This horizontal instrument
would focus on all key parameters of this remedy lato sensu, presumably offering some
initial answers to access to justice questions, such as rules on the identification of
claimants, standing, costs recovery, and funding opportunities.151
What is more, according to an earlier version of the Commission programme for
2012,152
a sector-specific instrument in antitrust actions for damages was also envisaged
by the end of December 2012. This was primarily aimed at offering effective damages
actions in competition law cases mainly via provisions such as those on the gathering of
evidence and disclosure of information, limitation periods in cases of follow-on actions,
and the determination of damages.153
Further, the sector-specific legislative instrument
would clarify and benchmark the relationship between public and private enforcement,
especially with regard to leniency programmes.154
It appears that mainly competition
law-related specificities would be dealt with in this sector-specific instrument,155
which
would apparently have a rather limited scope. For instance, according to this earlier
150 See, European Parliament, ‘Resolution of 2 February 2012 on ‘Towards a Coherent European
Approach to Collective Redress’ 2011/2089(INI)
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A7-2012-
0012+0+DOC+PDF+V0//EN accessed 18 February 2013. The Resolution ‘[s]tresses that any horizontal
instrument must cover all aspects of obtaining damages collectively’. See also, Andersson (n 55) 250. 151 Commission ‘Commission actions expected to be adopted 27/09/2012 – 31/12/2012’ 3
http://ec.europa.eu/atwork/pdf/forward_programming_2012.pdf 31 October 2012. 152 I refer to a version I came up across on 31 October 2012, a copy of which I have on my personal files
archive. 153 A Italianer, ‘Public and private enforcement of competition law’ (Speech delivered on the 5th
International Competition Conference, Brussels, 2012) 6-7
http://ec.europa.eu/competition/speeches/text/sp2012_02_en.pdf accessed 31 October 2012. 154 ‘Commission actions expected to be adopted 27/09/2012 - 31/12/2012’ (n 151) 1. See also, European
Competition Network, ‘Protection of leniency material in the context of civil damages actions’
(Resolution of the Meeting of Heads of the European Competition Authorities of 23 May 2012)
http://ec.europa.eu/competition/ecn/leniency_material_protection_en.pdf 31 October 2012. 155 One should bear in mind that the discussions on damages actions for antitrust cases have recognised
the similarity of stakes between the evidentiary and disclosure rules in the IPRED and those entailed in a
prospective legislative proposal for antirust cases only. See, inter alia: ‘White Paper on Damages actions
for breach of the EC antitrust rules’ (n 6) 4-5; Buccirossi et al (n 29) 89; B Hess, ‘Procedural
Harmonisation in a European Context’ (n 29) 165.
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version of the 2012 programme, the Commission would deal with the quantification of
damages in a separate non-legislative document.156
Such a development in the area of collective redress is important for a coherent
and systematic approach to core civil procedure matters. Accordingly, fundamental
procedural issues regarding collective redress will be considered in a general fashion,
offering an answer to access to justice considerations and balances involved, taking into
account national legal traditions and domestic provisions. As a result, only the truly
antitrust-specific procedural matters for effective damages will be tackled in a sectoral
fashion. Unfortunately, the Commission failed to deliver any of the above-presented
initiatives by the end of 2012. Additionally, under the current version of the 2013
Programme there is no reference to collective redress schemes or actions for damages in
antitrust cases. Having said that, according to the DG Competition Management Plan
for 2013, the Commission will continue working ‘towards the adoption of a legislative
proposal on antitrust damages actions, aimed at optimising the balance between public
and private enforcement of antitrust rules’.157
In addition, according to the DG Justice
Management Plan for 2013, one of the main policy outputs for 2013 will be the release
of the general principles of the EU framework for collective redress, albeit in a non-
legally binding format, namely through a Communication and Recommendation.158
5.4.2 Striking a balance?
Apart from the gradual promotion and consolidation of a general approach to
collective redress, current discussions on this mechanism for the enforcement of EU law
are important for another reason; they are driven by fundamental considerations of
access to justice in the EU. Therefore, they focus on the necessity to actively promote
the application of the right of access to justice through concrete provisions tackling the
156 ‘Commission actions expected to be adopted 27/09/2012 - 31/12/2012’ (n 151) 25: ‘Commission Communication on quantification of harm in antitrust damages actions’. 157 Commission, ‘Management Plan 2013 DG Competition’ 4
http://ec.europa.eu/atwork/synthesis/amp/doc/comp_mp_en.pdf accessed 18 February 2013. 158 Commission, ‘Management Plan 2013 DG Justice’ 23
http://ec.europa.eu/atwork/synthesis/amp/doc/just_mp_en.pdf accessed 18 February 2013.
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170
fundamental institutional deficiencies of national procedural systems.159
Some Member
States do not possess any form of collective compensatory relief.160
More importantly,
collective redress mechanisms, where existent, are considerably divergent from one
Member State to the other. Differences can be seen in areas of law in which such a
possibility exists,161
the actual types of collective redress and the subsequent rules on
legal standing for the initiation of such proceedings,162
the actual legal effect of a
judgment on the members of the group in collective proceedings,163
and the funding
systems for collective proceedings.164
Therefore, I will argue that concrete procedural
provisions will have to be devised in those broad areas to strike the right balance
between the interests involved in such a process. These provisions will support the
159 See above, ‘2.2 The constitutionalisation of the right of access to justice and repercussions for EU civil
procedure law’ 41. 160 These include Belgium, Cyprus, Czech Republic, Greece, Hungary, Ireland, Latvia, Luxembourg,
Malta, Poland, Slovakia, and Slovenia. See, ‘An analysis and evaluation of alternative means of consumer
redress other than redress through ordinary judicial proceedings – Final Report’ (n 67) 271. 161 For instance, in Sweden there is no limitation as to the material scope of collective redress mechanisms. On the contrary, in Italy collective procedures are limited to tort liability, unlawful
commercial practices or anti-competitive behaviour, and contract terms. In Portugal, collective redress is
available for disputes arising out of public health, environment, consumer protection, cultural heritage,
and public property issues. See: D Fairgrieve and G Howells, ‘Collective Redress Procedures – European
Debates’ (2009) 58 ICLQ 401; ‘An analysis and evaluation of alternative means of consumer redress
other than redress through ordinary judicial proceedings – Final Report’ (n 67) 278-281. 162 For example, in the UK, individual litigants can initiate collective procedures provided they are not in
a state of conflict of interest with the remaining members of the group. Also in Sweden and Spain, both
individuals and associations can commence collective proceedings, whereas in the Netherlands, Austria,
and Bulgaria only private, accredited organisations can bring collective claims. In Finland and Denmark,
only public authorities can initiate collective procedures. See: ‘An analysis and evaluation of alternative
means of consumer redress other than redress through ordinary judicial proceedings – Final Report’ (n 67) 281-285; ‘Public Consultation: Towards a Coherent European Approach to Collective Redress’ (Staff
Working Document) (n 141) 4. 163 For instance in Austria, Spain, and Sweden only persons that have opted in the collective proceedings
are bound by the court decision. In contrast, in Portugal and the Netherlands all people harmed by the
same business practices are bound by the decisions, unless they have expressly asked for their exclusion
from the class. Similarly, in group-actions, court decisions are binding on all members of the group
(Sweden, the UK, and Portugal). In representative actions, court decisions bind those members of the
class that validly assigned their claims to the representative body (the Netherlands, Austria, and France).
Finally, in test cases, court judgments solely bind the parties directly involved in the proceedings,
whereas the decision does not constitute a legal precedent binding courts adjudicating on future similar
claims (Germany). 164 In opt-in models for representative action, the representative organisation usually bears the costs for
notifying and bundling the members of the class. In Germany, Austria, Spain, and Sweden the ‘losing
party pays’ rule is maintained for collective actions. In Portugal and Netherlands, every party to the
dispute bears its legal costs individually, whereas the court determines the apportionment of procedural
costs between the parties.
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enforcement of EU law rights and obligations through the promotion of the claimants’
interests, the interests of the defence, and the good administration of justice.
5.4.2.1 Identifying the claimants: to opt in or to opt out, or both?
Collective actions enable multiple claimants to join their individual claims and
institute a single legal action against the same defendant. Unless claimants have a
realistic opportunity to participate in such actions, collective redress will not constitute
an effective means of enforcement of rights and obligations. Comparative research165
shows that this is essentially a choice between two basic options - an opt-in or an opt-
out system. In opt-in systems, there is a clearly defined group of claimants, who have
affirmatively confirmed their participation to a collective action. On the contrary, the
group of claimants is open in opt-out systems, with potential claimants automatically
becoming parties to a collective action. Still, they have the possibility to be excluded
from proceedings, if they expressly declare their wish to do so within the designated
time.
The rationale behind opt-in systems is that litigants should be aware of
proceedings binding on them.166
This being true, identifying all claimants who have
suffered harm and informing them about the prospective collective proceedings is a
complicated and often difficult task due to limited knowledge and access to information,
as well as increased notification costs. Opt-in systems are not particularly inclusive,
since quite often many potential claimants are not informed about the group action, or
are not informed within the provided cut-off period of the requirement to affirm their
participation in the dispute.167
This raises serious concerns from an access to justice point of view; opt-in
systems might curtail prospective claimants’ opportunity to participate to a collective
165 See inter alia: ‘An analysis and evaluation of alternative means of consumer redress other than redress
through ordinary judicial proceedings – Final Report’ (n 67) 287-293. 166 J A Jolowicz, ‘Group Litigation, Damages, and Judicial Control by Civil Courts’ in M Andenas (ed), Judicial Review in International Perspective (Kluwer 2000) 483. 167 European Economic and Social Committee, ‘Defining the collective actions system and its role in the
context of Community consumer law’ (Own-initiative opinion) [2008] OJ C 162/113; R Mulheron, ‘Some
Difficulties With Group Litigation Orders - And Why A Class Action Is Superior’ (2005) 24 C.J.Q. 54;
‘Green Paper on Consumer Collective Redress’ (n 6) 13.
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172
action, enforcing their rights and receiving effective redress for the harm incurred.168
This is more serious where private claims are of a very low value, rendering the
prospect of pursuing them individually unrealistic. Individuals’ incentive to institute
legal proceedings usually results from a cost-benefit analysis. Where the correlation
between the various costs involved in legal proceedings and the expected payoff is
positive, there is room for a rational initiative to pursue claims judicially.169
In view of
the low participation rate opt-in systems can usually achieve, claimants’ right of access
to justice could only marginally be promoted.
On the other hand, opt-out systems are more inclusive, essentially increasing the
possibility of access to courts to vindicate one’s rights.170
It is nonetheless often
suggested that opt-out systems abrogate the fundamental freedom to choose to involve
oneself, or not, in litigation and under what circumstances. The right of access to justice
does not constitute a procedural obligation and people who enjoy this right should be
168 Civil Justice Council, ‘Response to European Commission Public Consultation: Towards a Coherent
European Approach to Collective Redress (SEC (2011) 173 Final)’ 10
http://ec.europa.eu/competition/consultations/2011_collective_redress/cjc_en.pdf accessed 01 March
2013. The point raised by the Civil Justice Council is that the option between opt-in and opt-out systems
is not a straightforward one and the Commission should promote a more flexible approach. For example,
collective actions in cases of torts involving many harmed people such as in rail or air accidents, in
industrial accidents or holiday and clinical negligence claims, it is often easy to find the whole list of
adversely affected people (for instance through travel booking forms) and ask them to opt-in to a
collective action. The larger the number of harmed people, and the more difficult it is to find out who they
really are, the choice for an opt-in procedure should give way to opt-out systems that would render
redress more efficient and effective for all affected parties. Bear also in mind the recently confirmed plans
to introduce a limited opt-out collective actions regime, with safeguards, for competition law in the UK. The regime would apply to both follow-on and standalone cases, with cases to be heard only in the
Competition Appeal Tribunal. See, Department for Business, Innovation, & Skills, ‘Private actions in
competition law: A consultation on options for reform - government response’ (January 2013)
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/70185/13-501-private-
actions-in-competition-law-a-consultation-on-options-for-reform-government-response1.pdf accessed 10
March 2013. 169 See inter alia: CEPS, EUR, and LUISS, ‘Making antitrust damages actions more effective in the EU:
welfare impact and potential scenarios’ (Final Report for the European Commission contract DG
COMP/2006/A3/012) 175
http://ec.europa.eu/competition/antitrust/actionsdamages/files_white_paper/impact_study.pdf accessed 20
March 2013; W M Landes and R A Posner, ‘Private Enforcement of Law’ (1975) 4 J. Legal Stud. 1. 170 Professor Hodges mentions the case of US opt-out systems where members of the class in reality have
to opt-in to a settlement to claim their entitlement to the compensation fund. See, C Hodges, ‘Response
To Consultation: Towards a Coherent European Approach to Collective Redress’ (2011) 20
http://ec.europa.eu/competition/consultations/2011_collective_redress/university_of_oxford_en.pdf
accessed 01 March 2013.
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able to choose on every occasion whether they wish to exercise that right.171
Likewise,
they should be able to choose the form of litigation that best suits their interest, either
individually or collectively. Opt-out systems are seen as curtailing both these aspects of
the right to access to justice. However, this is not accurate; opt-out systems come with
the guarantee that proper and effective notice is given to all members of the represented
class, enabling them to opt-out of the collective action if they do not wish to participate
to the proceedings.172
More importantly, opt-out systems can to a certain extent cater for
the right of the defendant to fair proceedings by offering increased possibility for what
is often called ‘global peace’. Due to the higher participation rates in opt-out actions, the
defendant can rest assured that he will avoid future litigation. In contrast, in opt-in
regimes, where participation rates are low, another collective action representing the
remaining aggrieved members of the class, may crop up in the future.173
An interesting solution could be to combine both systems and come up with a
future EU mechanism of collective redress providing for opt-in and opt-out actions.174
This could provide the mechanism with adequate efficiency and flexibility. For
instance, where the number of plaintiffs is very large and the value of the claims is very
low, opt-out systems can facilitate collective redress, cutting down expenses for ex ante
identification of the members of the class, while also securing swift dispute resolution.
Similarly, in cases where there are high value claims and the members of the
171 ‘Defining the collective actions system and its role in the context of Community consumer law’ (Own-initiative opinion) (n 167) 14; Micklitz and Stadler (n 141) 1499. 172 Civil Justice Council, ‘Improving Access to Justice Through Collective Actions: Developing a More
Efficient and Effective Procedure for Collective Actions: A Final Report’ (A series of recommendations
to the Lord Chancellor, November 2008) 133-134
http://www.judiciary.gov.uk/JCO%2FDocuments%2FCJC%2FPublications%2FCJC+papers%2FCJC+Im
proving+Access+to+Justice+through+Collective+Actions.pdf accessed 20 November 2012; M Cappelletti
and B G Garth, Introduction – Policies, Trends, and Ideas in Civil Procedure (International Encyclopedia
of Comparative Law, J C B Mohr and M Nijhoff Publishers 1987) 76:
[…] the principles underlying the expansion of standing and participation [in class actions] are
reconcilable with a slightly modified traditional view of litigation. Instead of the very limited
principle of individual party disposition, we have the principle of disposition by responsible representatives of individuals.
173 S Issacharoff and G P Miller, ‘Will Aggregate Litigation Come to Europe?’ (2008) 62 (1) Vand.L.Rev.
179, 206 http://ssrn.com/abstract=1296843 accessed 20 November 2012; Buccirossi et al (n 29) 65-66. 174 ‘Response to European Commission Public Consultation: Towards a Coherent European Approach to
Collective Redress’ (n 168) 9.
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prospective class of claimants can easily be identified due to their limited number, opt-
in systems become the more rational and proportional approach in terms of balancing
the interests of the claimants, the defence and the good administration of justice.175
5.4.2.2 Legal Standing in collective disputes: Filtering mechanisms?
At the outset, it should be underscored that there are various schemes of
collective redress in the Member States establishing different standing rules for the
claimants. As a result, any classification of existing schemes is essentially artificial and
to a certain extent arbitrary; differentiating points between the various types of
collective redress and legal standing are often vague, and particular features of
collective redress may co-exist. Having said that, I will look mainly at three basic types
of collective redress: collective actions, representative actions, and test cases.176
Collective actions are instituted by one member of the group of victims, on
his/her name, and on behalf of the entire class, which does not otherwise participate in
the proceedings. Depending on the opt-in/opt-out character of the collective action, the
decision reached binds either only the claimants that have actively opted in the action or
everybody in the class who has not opted out from the proceedings. Representative
actions are initiated by specially designated organisations, state authorities, or
representative bodies on behalf of a group of claimants. These often provide the
possibility for injunctive relief rather than compensation, and bind either the members
of the group who have clearly opted in the proceedings, or everyone who has not validly
opted out of the action. Finally, test cases follow on from the idea that, in principle, it is
175 This is the case with employment disputes in the US, where an opt-in regime has been established. See
also, ‘Defining the collective actions system and its role in the context of Community consumer law’
(Own-initiative opinion) (n 167) 15, arguing that the problem with such a dual system is the lack of legal
certainty. The distinction between cases where an opt-in system should prevail, as opposed to those where
an opt-out system is preferable, is not a straightforward one. This could lead to further complexity and
delay. 176 Ibid, 12. See also: ‘An analysis and evaluation of alternative means of consumer redress other than redress through ordinary judicial proceedings – Final Report’ (n 67) 261; R O Faulk, ‘Armageddon
through aggregation? The use and abuse of class actions in international dispute resolution’ (2001) 10
Michigan State University -- Detroit College of Law Journal of International Law 205-238
http://works.bepress.com/richard_faulk/3 accessed 03 March 2013; C Hodges, ‘Multi-party Actions: A
European Approach’ (2001) 11 Duke J.Comp.& Int'l L. 343-344.
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sufficient to deal with a single case, taking it through all levels of the judicial system,
using the findings of this case for the settlement of all other mass claims based on
similar facts and legal bases. This presupposes that the defendant recognises that the
specific case constitutes a test case for claims brought by other claimants.177
Along
these lines, the decision binds all claimants, who can always be present and influence
the test case.178
Legal standing schemes of collective redress are also fundamental from an
access to justice point of view as they impinge on the right to access courts, instituting
legal proceedings. Accordingly, solely allowing state authorities and consumer
associations to initiate actions for collective redress could contribute to enhanced access
to courts, to the extent that these organisations constitute repeat-players, who will come
with guarantees of expertise in the loyal representation of the group interests. They also
come with their own budgets for the funding of the group litigation. This last element
vests the represented group of claimants with liquidity to cover the litigation expenses
regardless of the cost allocation scheme existing. From the perspective of the defence
rights in the initiation of collective redress proceedings, representative organisations can
guarantee that the defendant will not be dragged to the courts for unmeritorious,
frivolous cases,179
whereas they can also reimburse his legal expenses in the event that
the association is defeated and the loser-pays rule applies for the allocation of costs.180
However, associations in representative actions have only indirect gains from
litigation, mainly through increased popularity and increased revenue from membership
177 ‘An analysis and evaluation of alternative means of consumer redress other than redress through
ordinary judicial proceedings – Final Report’ (n 67) 261-262. 178 ‘Making antitrust damages actions more effective in the EU: welfare impact and potential scenarios’ (n
169) 268-272. 179 See, however, the German Verbandsklage, giving standing to associations to institute proceedings in
cases of unfair competition on behalf of the group of competitors. Unless the defendant signs a
declaration of injunction, the association becomes entitled for a fixed compensation to be paid by the
defendant for the notification expenses. This rule resulted in an abusive situation where many commercial
associations looked for obvious and trifle infringements, filing identical complaints against several branches of the same holding, hence making a profit due to the warning fee. Such a solution evidently
contradicts the defendant’s right to procedural justice. 180 Commission, ‘Accompanying document to the White paper on damages actions for breach of the EC
antitrust rules - Impact assessment’ (staff working document) SEC (2008) 405, 18-20; Buccirossi et al (n
29) 68.
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fees. As a result, they often lack sufficient incentive to institute collective legal
proceedings, which does not promote aggrieved claimants’ access to courts. In contrast,
in collective actions the aggrieved individual instituting the proceedings shares the same
direct interests with all the members of the class, having a straightforward incentive to
sue the violator. Allegedly, collective actions are faced with more limitations in terms of
funding opportunities for the proceedings compared to representative actions, as well as
limited guarantees as to the merit of the claims pursued. These two parameters can
jeopardise the right of access to justice of the defendant by rendering difficult the
application of the loser-pays rule, and by the risk of the so-called ‘blackmail suits’,
aimed purely at extracting a settlement from the defendant.181
On the other hand, test cases can hardly cater for information asymmetries
between the parties to the dispute, whereas they raise funding issues, especially where
low value claims are under discussion and instituting individual claims does not appear
economically rational. Finally, their value depends on the defendant recognising
subsequent cases as similar to those of already tested cases, rendering it a rather
unrealistic scenario in case of big classes of aggrieved individuals. However, regardless
of the particular type or types of legal standing chosen, the adoption of pre-trial filtering
mechanisms for an assessment of the preliminary merits of collective redress cases
could contribute to a fair balance of the interests of the claimants and the defendants.
Parameters such as the commonality of legal and factual issues, the numerosity of the
class, the superiority of collective actions, the adequacy of the representative, and the
financial capacity of the representative to reimburse the defendants’ recoverable costs
could be some of the most important filtering criteria.182
5.4.2.3 Financing the EU collective redress mechanism
If the costs for pursing private claims were unreasonable, litigants’ prospects to
enforce their rights, either individually or collectively, would be at a minimum,
181 R Miller, ‘Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the ‘Class Action
Problem’’ (1979) 92 Harv.L.Rev. 664. Whether this is really the case with collective actions will be
looked at below, ‘5.4.2.3 Financing the EU collective redress mechanism’ 176. 182 ‘Improving Access to Justice Through Collective Actions: Developing a More Efficient and Effective
Procedure for Collective Actions: A Final Report’ (n 172) 138.
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rendering adjudication a viable possibility for only well-off litigants. Access to justice
implies that access to courts should not be unreasonably costly; however, collective
redress will essentially be a costly process with costs including court fees, and where
applicable, lawyers’ fees, notification costs for opt-in systems, and experts costs. Some
of these costs will even have to be paid upfront for the institution of court proceedings,
whereas large amounts of funds are also required for the continuation of the action.
Even if a fair mechanism for the appropriation of costs could be envisaged, costs
might still be disproportionately high in cases of low value claims. For instance, one
option could be to hold the representative organisation or authority liable for all costs
involved in collective redress actions.183
However, associations’ funds are limited too,
and in such a scenario, associations would be even more selective regarding the cases
worth pursuing judicially.184
Even slight variations, such as the maintenance of
members of the class’ liability for their share of the costs and for any additional costs
they personally have incurred to the class, could hardly be reliable and effective enough
at the end of the day, realistically contributing to the enhanced enforcement of
aggrieved persons’ rights.185
More importantly, the costs appropriation in cases of opt-
out actions between the members of large classes of claimants, who simply have not
opted-out of the action, is both unrealistic and undesirable, as it would nullify the value
of opt-out regimes, namely the procedural simplification and ensuing efficiencies.
Third party funding of collective redress actions could be envisaged as a
solution, which allocates the risk of litigation to entities that can bear it more efficiently.
The rationale is that the third parties under discussion come with guarantees of liquidity
both for the institution and continuation of collective redress actions, as well as for the
reimbursement of the defendants’ expenses in case of defeat, in cost-shifting regimes.
Two broad categories of third party funding can be discerned; contingency/conditional
fee mechanisms, and various insurance products.
183 This is the case in Austria, France, and the Netherlands. 184 Buccirossi et al (n 29) 68. 185 This is the Swedish system under sections 34 and 35 of the Group Proceedings Act; see also the GLO
costs apportioning system in England and Wales.
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Contingency fees constitute a means to cover lawyers’ fees, offering a
percentage of the class compensation to the class advocate in case of victory. The most
common percentage amount in the US is that between 20-30% of the class recovery,
depending on various parameters such as the time and work needed, the complexities of
the case, the possibility for parallel employment by the attorney, the attorney’s
experience, and reputation, and the chances for success of the case. Conditional fees
also aim to limit lawyers’ expenses through agreements for reduced upfront fees
accompanied with the possibility for a success fee in case of victory.186
Although contingency/conditional fees do not provide a source of funding for all
legal expenses in collective redress actions, they nonetheless alleviate a considerable
part of the financial burden claimants need to cover upfront. This possible route can
facilitate access to courts for the additional reason that it transfers the collective redress
action’s risk to law firms, along with guarantees of legal expertise for the successful
pursuance of the case and with fewer risk-aversion considerations due to the possibility
to spread any potential financial loss onto a portfolio of other cases.187
Additionally,
contingency fee schemes can be seen as enhancing the defendants’ right to a just and
fair trial through the limitation of frivolous, unmeritorious claims. Since lawyers
indirectly co-finance the proceedings, they have little incentive to take up weak cases
that are unlikely to succeed in a court of law, as this would lead to no or limited
reimbursement for their services.188
The main drawback of contingency fees put forward in the literature is the
possible clash of interests between claimants and attorneys (principal-agent problem).
Attorneys are seen as having an incentive to settle collective actions of increased
complexity or of limited success prospects in order to receive their fees as a percentage
186 ‘An analysis and evaluation of alternative means of consumer redress other than redress through
ordinary judicial proceedings – Final Report’ (n 67) 315-316. 187 J Backhaus, ‘The law firm as an investment bank in class actions’ (2011) 32(2) Eur J Law Econ 225,
226. 188 E Helland and A Tabarrok, ‘Contingency Fees, Settlement Delay, and Low-Quality Litigation:
Empirical Evidence from Two Datasets’ (2003) 19(2) J.L.Econ. & Org. 517. For an opposing view see,
inter alia: W Olson, ‘Sue City: The Case against the Contingency Fee’ (1991) 55 Policy Review 46.
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of the compensation settlement.189
In the former case, early settlement does not promote
claimants’ right to a fair trial and effective remedy, since the continuation of court
proceedings might result in higher compensation and a generally more appropriate
resolution of the dispute.190
The latter case presupposes the association between the
promotion of frivolous cases and the introduction of contingency fee schemes. Only if
lawyers were incentivised to take up weak cases, could they also tend to settle at an
early stage for fear they might lose in the end (blackmail suits). However, empirical
evidence demonstrates that there is hardly any link between contingency fees and
unmeritorious cases; lawyers actually take up strong cases and proceed with the trial of
the case when their gains will increase proportionately with the amount of
compensation awarded.191
Contingency/conditional fees can only provide the essential liquidity for the
institution and continuation of proceedings. However, in case of loss, they provide no
solution for the loser-pays rule. In other words, although prospective claimants can rest
assured that when a case is lost, they will not incur lawyer’s fees, they would still have
to cover the defendant’s legal expenses, which is often off-putting for the initiation of
even well-grounded cases. As a result, an additional means to secure third party funding
for the coverage of legal expenses, including those of the defendant in case of defeat, is
via agreements for before the event (BTE) and after the event (ATE) insurance schemes.
The main concern is that insurance companies have the right to deny insuring
certain prospective litigants, hence limiting their right to access courts. This problem
becomes even more pertinent in ATE insurance covers, where insurance companies may
only offer coverage for high value claims.192
Even if legal expenses insurance is indeed
189 See inter alia, H Gravelle and M Waterson, ‘No Win, No Fee: Some Economics of Contingent Legal
Fees’ (1993) 103 The Economic Journal 1205. 190 See inter alia: C Hodges, ‘Europeanisation of civil justice: trends and issues’ (2007) 26 C.J.Q. 102-
104; Hodges, ‘Multi-party Actions: A European Approach’ (n 176) 308. 191 See inter alia: D Cumming, ‘Settlement Disputes: Evidence from a Legal Practice Perspective’ (2001)
11(3) Eur J Law Econ 249. 192 In England and Wales, the threshold of viability for a claim value is currently not less than £100,000,
and for many funders £1 million. This threshold is lower in Germany were legal expenses’ predictability
is more straightforward: C Hodges, J Peysner, and A Nurse, ‘Litigation Funding: Status and Issues’
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offered, there are serious concerns about the actual level of the insurance premium,
which may be prohibitive for many prospective litigants.193
The larger the pool of
insured persons, the lower premiums will be. This in turn suggests that in legal orders
with legal expenses transparency, through fixed lawyers’ fees and capped recoverable
costs, BTE insurance could be a realistic and popular alternative.194
ATE insurance
schemes are different because there is a considerably smaller pool of insured persons
compared to BTE, and consequently more expensive insurance premiums.195
However,
at least in opt-in collective actions, there will be a greater number of class members
among which to divide the ATE premium.
5.4.2.4 Allocation of Legal Costs
Related to the funding of collective redress actions is the issue of which scheme
should apply for the recovery of legal costs. This issue has serious access to courts
repercussions for both the claimants and the defendants. On the one hand, claimants
should not be discouraged to lodge meritorious cases due to high legal expenses
involved in the adjudication of disputes. On the other hand, the defendant should be
equally protected from a judicial regime that makes it disproportionately easy for
claimants to bring a claim, even if it lacks solid grounds, being frivolous. The scheme
largely applied in the EU to balance the interests of both the claimants and the defence,
is that of the ‘loser pays’ principle. This rule comes with guarantees that only
meritorious cases will reach the courts for fear of having to pay the winning parties’
legal expenses, a likely prospect in case of weak, frivolous lawsuits. Equally, the high
level of legal expenses does not completely put off claimants with strong cases, because
if they win the case, they will recover these costs by the losing party.
[Footnotes continued on next page]
(Research Report 2012) 104 http://www.csls.ox.ac.uk/documents/ReportonLitigationFunding.pdf
accessed 20 November 2012. 193 Ibid, 18. 194 For instance, this is the case in Denmark, England and Wales, and Germany: C Hodges, S Vogenauer, and M Tulibacka, The Costs and Funding of Civil Litigation. A Comparative Perspective (Hart Publishing
2010) 21; V Prais, ‘Legal Expenses Insurance’ in A A S Zuckerman and R Cranston (eds), Reform of
Civil Procedure Essay on ‘Access to Justice’ (Clarendon Press 1995) 431. 195 Hodges refers that ‘in 2008, after-the-event litigation funding was only used in approximately 0.4 per
cent of cases’. Hodges et al, ‘Litigation Funding: Status and Issues’ (n 192) 41.
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However, as has already been explained in the previous sub-section, the loser-
pays rule can often prevent claimants with meritorious cases pursuing them judicially
due to the expenses involved in the event of defeat. After all, the prospect of being
reimbursed for the expense incurred by the losing defendant, offers practically no
assistance to litigants struggling to cover the upfront legal expenses for the institution of
proceedings. These considerations, combined with the possibilities for abuse of the loser
pays rule by the defendants, render the fairness of this provision all the more
questionable. Large multi-national companies have the resources and incentive to incur
unreasonably high legal costs, mainly by employing many lawyers, to deter mass
claimants from pursuing their case before the courts, or at best to settle at a very early
point, preventing the mass claimants from achieving the amount of compensation that
they could have otherwise secured.
Possible alternatives could be more relaxed versions of the loser pays rule,
mainly through the possibility of recovery of some legal expenses only, or the recovery
of all costs at a fixed rate. Such an option could potentially maintain the positive aspects
of the traditional loser pays rule, namely the encouragement of meritorious cases,
rendering litigation a less daunting prospect. At the same time, it could render the
litigation funding options discussed above, and mainly that of legal expenses insurance,
all the more feasible and effective, due to limited risks196
and increased transparency.197
5.5 Summary
On the one hand, IPRED has introduced core civil procedure rules on important
matters of law enforcement, such as disclosure of evidence, provisional measures, and
196 For instance, the impact of error costs is limited under qualified cost-shifting rules, also limiting
litigants’ risk-averse behaviour in initiating legal proceedings. See inter alia, ‘Making antitrust damages
actions more effective in the EU: welfare impact and potential scenarios’ (n 169) 176-180. 197 Hodges, ‘Europeanisation of civil justice: trends and issues’ (n 190) 100-101: Hodges identifies the
possibility for a limitation of the defeated weaker party’s liability to a percentage of the court costs,
excluding any liability for lawyer’s fees. However, such costs allocation scheme seems to contradict the
right of access to justice, which should respect the defendants’ rights too, shifting disproportionately the
burden for the funding of collective redress actions to the defendant.
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legal costs. In doing so, its impact has been felt more widely in domestic procedural
systems; even sectoral rules on these core procedural themes are interwoven with and
refer back to the general national provisions on the same matters. In addition, the strict
law enforcement perspective of IPRED has led to the creation of fragmented rules of
only limited effectiveness for the adjudication of EU law IP rights, lacking a definitive
balance of competing interests.
On the other hand, ESCP has introduced an autonomous EU procedural
mechanism, existing in parallel with analogous domestic small claims mechanisms,
offering the possibility for EU litigants to choose either the domestic or EU mechanism
in order to resolve their disputes.198
Despite positive steps in the direction of facilitating
effective access to justice in the EU, ESCP has raised serious concerns too. Specifically,
ESCP applies solely to cross-border disputes, which combined with its considerable
dependence on Member States’ domestic procedural regimes, results in the creation of
parallel, alternative systems, which are, however, divergent from one Member State to
another, depending on the domestic procedural rules that fill the EU procedure’s gaps.
More importantly, this approach leads to a multiplicity of procedures, since in reality
the procedural scene consists of 28 different national procedural regimes that may, or
may not, include special provisions for the procedural subject regulated its time, along
with equal number of EU originated procedures applicable solely to cross-disputes.
In view of this truncated environment of civil procedure harmonisation,
discussions on the adoption of a future EU collective redress mechanism might offer a
preliminary indication as to the better solution forward under the current Treaty scheme.
Such a mechanism poses many challenges for the promotion of the right of access to
justice, requiring a careful consideration and assessment of alternative regulatory
options in a handful of issues, striking a balance between law enforcement and
procedural fairness. Procedural rules are not mere technicalities in the service of
198 See inter alia: Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21
April 2004 creating a European Enforcement Order for uncontested claims [2004] OJ L143/15;
Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006
creating a European order for payment procedure [2006] OJ L399/1; ESCP (n 5).
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substantive law. Such a consideration is one-sided and limited, and does not conform to
entrenched EU-wide beliefs regarding the close relationship between procedure and
national legal cultures. Accordingly, fundamental values should underpin the technical
side of civil procedural rules in a ‘checks-and-balances relationship’.199
In the next chapter of this thesis, I will focus on the meaning and breadth of the
appropriate legal basis for a general and coherent intervention in national civil justice
systems, namely Article 81 TFEU. I will argue that a joint reading of Articles 47
CFREU and 81 TFEU constitutes the right way forward. Such joint reading will remedy
the deficiencies of the horizontal EU approach as evinced through the ESCP,
maintaining only the positive elements of the ad hoc judicial and legislative approaches,
namely the scope of Union law and the intervention into core procedural themes.
199 A B Spencer, ‘The Restrictive Ethos in Civil Procedure’ (2010) 78(2) Geo.Wash.L.Rev. 116
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1343129## accessed 10 March 2013.
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6 The Horizontal Approach to EU Civil Procedure Law
Reconceptualised: Achieving Greater Coherence
6.1 Introduction
In the previous chapters, I argued that a certain degree of EU intervention into
national procedural regimes has already been achieved via the CJEU case law (Chapter
4) and sectoral or horizontal instruments of secondary EU law (Chapter 5), aiming at the
effective enforcement of EU substantive law. Although access to justice has played an
instrumental role in all these methods of harmonisation of national procedural regimes,
the essentially ad hoc nature of both CJEU and sectoral secondary EU rules, have
inhibited EU institutions from systematically promoting the right of access to justice via
the adopted EU civil procedure rules. The reason is the incapacity to fully consider the
depth of the right of access to justice under Article 47 CFREU, due to limited
constitutional legitimacy. In addition, the current application of the horizontal approach
comes with several limitations for the systematic promotion of access to justice in the
EU, exacerbated by its territorial scope of application to cross-border disputes.
In this chapter, I will further explore the potential of the horizontal approach to
lead to coherent EU civil procedure rules promoting access to justice in the EU pursuant
to the enactment of the 2009 Lisbon Treaty. The Lisbon Treaty has introduced Article
81 TFEU (ex Article 65 EC) as a separate Chapter 3 of Title V on an Area of Freedom,
Security, and Justice. Civil justice cooperation has gained an autonomous character in
that it now constitutes a distinct sub-area of the EU policy on Freedom, Security, and
Justice.1 More importantly, the approximation of Member States’ civil procedural rules,
provided for in Article 81 TFEU, has gained a central role in the establishment and
proper functioning of this Area and the EU in general.2
1 See: B Hess, Europäisches Zivilprozessrecht (CF Müller 2010) 74. 2 In addition, based on Article 3(2) TEU, the creation of an Area of Freedom, Security, and Justice
constitutes for the first time a primary goal of the EU.
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Against this backdrop, I will compare and contrast Article 81 TFEU to its
predecessor, Article 65 EC Treaty. The aim is to identify any substantial differences
between the two versions of the provision at hand, and discover whether the new
formulation offers wider prospects for systematic EU regulatory intervention. I will
submit that the horizontal approach of Article 81 TFEU can more easily pass the access
to justice test, offering adequate guarantees for a consistent and systematic approach to
EU civil procedure law, which nonetheless presupposes a genuine reconsideration of the
scope of application of Article 81 TFEU and the overall policy of civil justice
cooperation.3 I will then test this submission against the principles of subsidiarity and
proportionality in the last part of the analysis.
6.2 Civil justice cooperation after the Lisbon Treaty: a new era?
Even at the early stages of the visualisation of the European Economic
Community and the creation of the Founding Treaties, participating Member States
envisaged procedural cooperation in civil matters as a key parameter of EU integration.
Therefore, the original Treaty of Rome encouraged Member States to enter into
negotiations with each other in order to achieve for their citizens among others, the
simplification of recognition and enforcement of judgments of courts or tribunals and of
arbitration awards.4 Moving on, the Maastricht Treaty set the foundations for a distinct
European policy on civil justice cooperation in Article K.1(6) EU.5 Finally, the
3 See: B Hess, ‘Procedural Harmonisation in a European Context’ in X E Kramer and C H van Rhee (ed),
Civil Litigation in a Globalising World (T.M.C. Asser Press 2012) 171; M Tulibacka, ‘Europeanization of
Civil Procedures: In search of a Coherent Approach’ (2009) 46 CML Rev. 1527, 1561-1564. 4 Article 220 EEC (now repealed). The 1968 Brussels Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters (OJ L299/32) was based on this Treaty provision. Remien,
writing on the significance of this initial instrument pithily suggests that ‘the expert drafters of the
[Brussels] Convention were forerunning the diplomatic drafters of article 65 EC [now 81 TFEU] by
almost 30 years’. O Remien, ‘European Private International Law, The European Community and its
Emerging Area of Freedom, Security and Justice’ (2001) 38 CML Rev. 55. On the inefficiencies and complexities involved in the intergovernmental approach of Article 220 EC to judicial cooperation see,
inter alia: J Basedow, ‘The Communitarization of the Conflict of Laws under the Treaty of Amsterdam’
(2000) 37 CML Rev. 688. 5 This Article has served as a legal basis for the drafting of the 1995 Convention on insolvency
proceedings, the 1997 Convention on Service of Judicial and Extrajudicial Documents, and the 1998
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Amsterdam Treaty brought a sea of change in civil justice cooperation by transferring
the policy area from the Third Pillar, of intergovernmental responsibility, to the First
Pillar, of EU action.6 Article 65 EC (the article existing before the 2009 Lisbon Treaty,
now Article 81 TFEU) formed the legal basis for civil justice cooperation in civil
matters having cross-border implications, and which were necessary for the proper
functioning of the Internal Market.7 My purpose in this section is to explore in detail the
new provision of Article 81 TFEU on civil justice cooperation after the 2009 Lisbon
Treaty. Does the new version come with greater guarantees for an access-to-justice
based intervention in national procedural regimes? Are there nonetheless any limitations
in the wording of the legal basis and the overall policy area of civil justice cooperation
confining potentials for a coherent approach to EU civil procedure law?
6.2.1 Key changes in the post-Lisbon era
Only the first and part of the second paragraph of Article 81 TFEU are relevant
for this analysis. They read as follows:
1. The Union shall develop judicial cooperation in civil matters having cross-
border implications, based on the principle of mutual recognition of judgments
and of decisions in extrajudicial cases. Such cooperation may include the
adoption of measures for the approximation of the laws and regulations of the
Member States.
[Footnotes continued on next page]
Convention on Jurisdiction and Recognition and Enforcement of judgments in matrimonial matters. None
of the three Conventions ever entered into force. On the limitations of Article K.1 EU see: G Barrett,
Justice Cooperation in the EU, The Creation of a European Legal Space (Institute of European Affairs
1997) 24-38: lack of deadlines, lack of sanctions, unanimity, vague objective, complex adoption and re-
ratification processes. 6 This was achieved via the insertion of a new Title IV in the EC Treaty focusing on Visas, Asylum,
Immigration, and other policies related to the free movement of persons. On the significance of the Area
of Justice, see: European Parliament, ‘Resolution on the draft action plan of the Council and Commission
on how to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and
justice’ A4-0133/99, para 2. 7 A Staudinger and S Leible, ‘Article 65 of the EC Treaty in the EC System of Competencies’
(2000/01) 4 The European Legal Forum 226; Justice and Home Affairs Council, ‘Action plan of the
Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an
area of Freedom, Security and Justice’ [1999] OJ C19/ 4, para 16. See also, B Hess, ‘Nouvelles
techniques de la cooperation judiciaire transfrontière en Europe’ (2003) 92(2) Rev. Crit. DIP 223-224.
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2. For the purposes of paragraph 1, the European Parliament and the Council,
acting in accordance with the ordinary legislative procedure, shall adopt
measures, particularly when necessary for the proper functioning of the internal
market, aimed at ensuring:
[...]
(e) effective access to justice;
Many interpretative issues arise from the above wording and structure of Article
81 TFEU. Firstly, Article 81 TFEU has added ‘effective access to justice’ as a distinct
aim of EU approximation measures to be promoted in the area of civil justice
cooperation.8 Access to justice constitutes a fundamental human right, protected under
Articles 6 and 13 ECHR, and more recently, under Article 47 CFREU. Taking into
account that the Lisbon Treaty has accorded the Charter of Fundamental Rights a
binding legal status, equal to that of primary EU Treaty law, the explicit reference to
effective access to justice in Article 81 TFEU constitutes a further commitment to the
promotion of this fundamental right. To this end, the actual meaning and scope of the
fundamental right of Article 47 CFREU should guide the reach of future EU
approximation measures.9 Nevertheless, with this proposition I do not advocate the
introduction of new EU powers in civil justice cooperation, or the modification of
existing tasks. I only put forward an appeal for a systematic interpretation of primary
EU law, whereby the right to effective access to justice should have a consistent
meaning and scope throughout all EU Treaty provisions.10
8 Briefly, Article 81 TFEU enumerates promptly and in an exhaustive fashion, the specific aims of EU
approximation measures. Repeating in elements (a)-(d) and (f) what used to be Article 65(1) EC, it has
added as further bases of EU activity elements (g) on alternative methods of dispute settlement, and (h)
on training of the judiciary and judicial staff, offering transparency along with increased scope of EU
competence. For more detailed analysis, see, S Bariatti, Cases and Materials on EU Private International
Law (Hart Publishing 2011) 6. 9 See above, ‘2.3 The fundamental procedural guarantees of the right of access to justice: the standard of
protection’ 50. See also: G Sanna, ‘Article 47 of the EU Charter of Fundamental Rights and Its Impact on
Judicial Cooperation in Civil and Commercial Matters’ in G di Federico (ed), The EU Charter of Fundamental Rights: From Declaration to Binding Instrument (Springer 2011) 173-174; E Storskrubb,
Civil Procedure and EU Law, A Policy Area Uncovered (OUP 2008) 91. 10 For the additional implications of the hereby-predicated joint reading of Articles 47 CFREU and 81
TFEU, see below, ‘6.3.2 Reconsidering the general premises of EU civil justice cooperation’ 199. See
also: M Storme, ‘A Single Civil Procedure for Europe: A Cathedral Builders’ Dream’ (2005) 22 RLR 91;
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
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Secondly, it has downgraded the importance of the Internal Market provision.
Article 65 EC presupposed that any EU measure should be necessary for the proper
functioning of the Internal Market. In other words, EU civil procedure rules based on
Article 65 EC needed to be adequately connected with the proper functioning of the
Internal Market.11
Article 81 TFEU has relaxed this condition, providing that the EU
can adopt approximating measures ‘particularly when necessary for the proper
functioning of the internal market’. The use of the adverb ‘particularly’ (emphasis
added) suggests that the proper functioning of the Internal Market constitutes only an
indication of these cases when EU approximation measures to ensure effective access to
justice might be necessary. In other words, EU civil procedure measures based on
Article 81(2)(e) TFEU could promote access to justice in the EU for the enforcement
and dispute resolution of non-Internal Market related rights and obligations, covering
the whole spectrum of rights and freedoms guaranteed under Union law, in accordance
with Article 47(1) CFREU.
What is more, under the Amsterdam regime, Article 65 EC fell under Title IV,
which also related to the free movement of persons. The drafters of the EC Treaty
needed to legitimise judicial cooperation in civil matters as a Union policy, associating
it with an already existent EU policy, that of the establishment of the Internal Market.12
However, after the enactment of the Lisbon Treaty, a distinct EU policy for an Area of
Freedom, Security, and Justice (Title V) has been created in accordance with Articles 3
[Footnotes continued on next page]
H E Hartnell, ‘EUstitia: Institutionalizing Justice in the European Union’ (2002-2003) 23 Nw.J.Int'l L. &
Bus. 92. See however, House of Lords, The Treaty of Lisbon: an Impact Assessment (10th report, 2007-
2008) 137-138 http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf accessed
9 March 2013: suggesting that the explicit introduction of the access to justice provision in the wording of
Article 81 TFEU offers an additional impetus to EU legislative activity in the area of civil procedure
approximation, albeit already covered in the pre-Lisbon regime. 11 See: H Duintjer Tebbens, ‘Ein Ziviljustizraum in der Europäischen Union – auf Kosten einer
Aushöhlung der internationalen Zusammenarbeit?’ in Baur/Mansel (eds), Systemwechsel im europäischen
Kollisionsrecht (2002) 177. However, according to Staudinger and Leible this provision can be read to
have a more pervasive effect. Specifically, the Internal Market formulation of Article 65 EC provided the EU with extra power to legislate in the area of judicial cooperation to achieve something more than a
functioning Internal Market, namely a properly functioning Internal Market. See, Staudinger and Leible
(n 7) 233. 12 According to Article 26 TFEU (ex Article14 EC), the Internal Market is conceived as incorporating the
promotion of all four freedoms, including the free movement of persons.
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TEU and 4(j) TFEU. As a result, this policy area has been dissociated from the free
movement of persons, now placed in a separate Title IV, further downgrading the
necessity for approximation measures ensuring access to justice to be linked, even
remotely, with the Internal Market.13
Thirdly, under the pre-Lisbon regime, Article 67 EC provided for a specific
legislative procedure that, unlike the ordinary legislative co-decision process of Article
251 EC, did not offer to the Commission the sole right of initiative. That same provision
also empowered Member States to set a legislative agenda themselves, keeping a
consultation only role for the European Parliament, and obliging the Council to adopt
legislation by unanimity. The sharing of the legislative initiative between the
Commission and the Member States considerably curtailed the Commission’s capacity
to make swift and autonomous legislative proposals in judicial cooperation matters.
Furthermore, the European Parliament’s diminished role in the decision-making process
for civil justice cooperation measures impacted on the democratic legitimacy and
possibilities for control of the Council’s activities. Finally, the requirement for a
unanimous adoption of legislative proposals on civil justice cooperation could result in
the paralysis of the entire policy area, leading to the adoption of watered-down
proposals at the level of the lowest common denominator, or of non-binding nature.14
On the contrary, Article 81 TFEU explicitly provides that legislative proposals
in the area of civil justice cooperation should be adopted following the ordinary
legislative procedure of Article 294 TFEU (ex Article 251 EC), namely via co-decision
between the European Parliament and the Council. New Article 81 TFEU facilitates
swift legislative proposals for future EU civil procedure rules, which, if jointly adopted
by the Parliament and the Council, will come with considerable democratic legitimacy,
and potentials to ensure effective access to justice in the EU through concrete rules,
striking a balance between competing interests in adjudication of EU law rights and
obligations.
13 Praesidium, ‘Area of freedom, security and justice: draft Article 31, Part One and draft articles from
Part Two’ (Cover Note) CONV 614/03, 20. 14 Barrett (n 5) 24-38.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
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Fourthly, in the pre-Lisbon regime, Article 68 EC (now repealed) provided that
only national courts of last instance could make use of the 234 EC preliminary reference
procedure for the interpretation of Article 65 EC and of measures adopted on that legal
basis.15
Alternatively, the Council, the Commission, or the Member States could request
the CJEU to interpret measures on civil justice cooperation. However, after the
enactment of the Lisbon Treaty, measures adopted based on Article 81 TFEU can be
reviewed by the CJEU via the lodging of a preliminary reference by the courts and
tribunals of all levels in a national court system (Article 267 TFEU).16
This constitutes
yet another potential for a coherent approach to EU civil procedure law for the
promotion of effective access to justice. Prospective EU instruments will be judicially
interpreted and explicated by the CJEU in a systematic fashion, diluting doubts and
ambiguity regarding the application of procedural rules by national courts for the
adjudication of EU rights and obligations.
On the whole, both Articles 67 EC and 68 EC generated significant limitations
and inefficiencies in the policy area of civil justice cooperation. Nevertheless, they
should not be interpreted as an intentional way to limit the reach of Article 65 EC. Quite
on the opposite, both these Articles enshrined an attempt by the makers of the
Amsterdam Treaty to reconcile the pre-Amsterdam intergovernmental era with a
steadily increasing EU role in civil justice. Therefore, Articles 67 EC and 68 EC could
be seen as a phasing-in procedure for the gradual transition from a strictly
intergovernmental policy area to a completely Europeanised one. Their application was
expressly limited to a 5-year period, after which the ordinary legislative procedure of
Article 251 EC would have to be introduced in the policy area of civil justice
cooperation and the preliminary reference procedure should be opened up to more
15 On the problematic aspects of this provision for the broader ‘Area of Freedom, Security and Justice’
see, inter alia: P Eeeckhout, ‘The European Court of Justice and the ‘Area of Freedom, Security and
Justice’: Challenges and Problems’ in D O’Keeffe and A Bavasso (eds), Liber Amicorum in Honour of Lord Slynn of Hadley. Judicial Review in European Union Law (Vo1, Kluwer Law International 2000)
153ff. 16 Case C-283/09 Artur Weryński v Mediatel 4B spółka z o.o. [2011] ECR I-00601, paras 28-31; case C-
396/09 Interedil Srl, in liquidation v Fallimento Interedil Srl and Intesa Gestione Crediti SpA [2011] OJ
C 362/3, paras 19-20.
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national courts. Indeed, Member States amended Article 67 EC in the 2001 Treaty of
Nice, extending the co-decision process of Article 251 EC in the civil justice area too.17
Overall, the new formulation of the competence in Article 81 TFEU is of
tremendous importance in the quest for greater coherence in EU civil procedure law via
recourse to the right of access to justice. On the one hand, it explicitly authorises EU
institutions to intervene in national laws and regulations, allowing for access to justice
to be used as the guiding tool in this process. On the other hand, approximating
measures need not be necessary for the proper functioning of the Internal Market.18
As a
result, EU civil procedure measures can be envisaged in the broader remit of EU law,
covering not only economic, but also social policies.
6.2.2 New rules, old problems?
The scope of the EU competence on civil justice cooperation has been
considerably expanded in the post-Lisbon era. However, the new provision has carried
over some of the inefficiencies and problematic aspects of its predecessors. To begin
with, Article 81 TFEU, like its predecessor Article 65 EC, provides that ‘the Union shall
develop judicial cooperation in civil matters having ‘cross-border implications’. EU
approximation measures can apparently be adopted for civil justice matters, either
litigation or comparable proceedings such as mediation, affecting parties not habitually
resident in the same Member State. E contrario, purely domestic civil justice matters
should be left to the Member States’ regulatory discretion and authority.
Judging from the current discussions on a European Attachment Order, Article
81 TFEU will most likely continue being interpreted in such a restrictive fashion. The
legal basis for the European Attachment Order is expressly Article 81 (2)(a), (e), and (f)
TFEU. Accordingly, its regulatory scope is still limited to cross-border disputes,
introducing yet another alternative European procedure that will exist in parallel with
17 Treaty of Nice amending the Treaty on European Union, the Treaties establishing the European
Communities and certain related acts [2001] OJ C 80/01, Article 2(4). 18 See: UK Government, ‘Commentary on the Constitutional Treaty, Part 3 the policies and functioning of
the EU’ (2005) 168
http://webarchive.nationalarchives.gov.uk/20050606200944/http://www.fco.gov.uk/Files/kfile/commenta
ry_Part2_Part3.pdf accessed 18 March 2013; House of Lords. The Treaty of Lisbon: an Impact
Assessment (n 10) 137-138.
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192
Member States domestic attachment provisions. The proposed European procedure will
bear some of the positive characteristics of the Small Claims Procedure, such as the lack
of mandatory legal representation, the wide use of standard forms, and the abolition of
the exequatur. It will also respect the interests of the defence via considerable
possibilities to contest the attachment, generally being inspired by access to justice
considerations regarding the effective execution of judgements. However, it will also
carry over all limitations and compromises of the pre-Lisbon era in the area of civil
justice cooperation.19
As with the Small Claims Procedure,20
the limitation to cross-border claims will
most likely compromise the effectiveness and value of the entire attachment procedure.
The European attachment order does indeed emanate from private international law
considerations regarding the existence of actual enforcement measures for judgments
rendered abroad. This is particularly so due to the limitations and inefficiencies of the
Brussels I Regulation epitomised in its prohibition for an ex parte attachment order, as
well as complicated, timely and costly opportunities for protective measures.21
Although this problem is tackled in the recently adopted recast of the Brussels I
Regulation,22
the European attachment order provides common standards for the
procedure of granting attachment orders. This is exactly where the initiative transcends
the strict PIL boundaries, rendering the cross-border limitation hard to justify. Taking
into account the rules on provisional and precautionary measures already introduced in
19 See: Commission, ‘Green Paper on Improving the Efficiency of the Enforcement of Judgments in the
European Union: the Attachment of Bank Accounts’ COM (2006) 618 final; Commission, ‘Annex to the
Green Paper on improving the efficiency of the enforcement of judgments in the European Union: the
attachment of bank accounts’ ( Commission Staff Working Document) SEC (2006) 1341; Commission,
‘Proposal for a Regulation of the European Parliament and of the Council Creating a European Account
Preservation Order to facilitate cross-border debt recovery in civil and commercial matters’ COM (2011)
445 final. 20 See above, ‘5.3 Horizontal EU civil procedure rules: the example of the European Small Claims
Procedure’ 150. 21 See: Articles 31 and 43 (5) Brussels 1 Regulation; case 125/79 Denilauler v. Couchet Frères [1980]
ECR 1553. 22 Regulation (EU) No 1215/2012 of the European Parliament and of the Council on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters (Recast) [2012] OJ L351/1,
Article 35.
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IPRED, insisting on the dichotomy between cross-border and domestic disputes makes
little sense.23
Overall, there is a paradox in the access to justice rationale of the proposal for
the execution of decisions. Article 47 CFREU explicitly guarantees the right of access
to justice for all rights and freedoms provided under Union law. These rights can be
breached and freedoms unjustifiably limited in purely domestic, rather than cross-border
cases too. After the Lisbon Treaty and the European Charter, measures in civil
procedure law, essentially encroaching upon the fundamental right of access to justice,
should no longer maintain a narrowly perceived cross-border distinction,24
unless
associated with PIL. This derives from the systematic interpretation of primary EU law,
indispensable part of which is as of 2009 the EU Charter and its Article 47 CFREU.25
Other Limitations
In the pre-Lisbon regime, two protocols were attached to Title IV and Articles
61 and 65 EC dealing with the position of the United Kingdom, Ireland, and Denmark
with regard to the Area of Visas, Asylum, Immigration and policies related to the free
movement of persons. The UK and Ireland opted out of measures related to Title IV of
the Treaty. Nevertheless, they retained the possibility to decide within three months of
the submission of a proposal on Title IV that they wished to participate in the adoption
and application of specific measures (opt in).26
Denmark also opted out, as a matter of
general principle, of measures adopted based on Title IV EC Treaty. However,
Denmark did not even retain the possibility to opt in at a later stage to future EU
measures in that policy area.27
23 See above, ‘5.2.1 An instrument for harmonising core aspects of civil procedure?’ 138. See also a direct
reference to IPRED in the green paper for the review of the Brussels I Regulation: Commission, ‘Green
Paper on the review of Council Regulation (EC) no 44/2001 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters’ COM (2009) 0175 final, 8: this constitutes a
further confirmation of the similarity of requirements and access to justice considerations of civil
procedure law regardless of its application to cross-border and/or domestic disputes. 24 See below, ‘6.3.2.2 ‘Cross-border implications’’ 202. 25 See, Article 6 TEU. 26 Treaty of Amsterdam, ‘Protocol No 4 (now No 21) on the position of the United Kingdom and Ireland’,
Articles 1-4. 27 Treaty of Amsterdam, ‘Protocol No 5 (now No 22) on the position of Denmark’, Articles 1-3, 5, 7.
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The initial reasons for those three countries’ opt-outs were concerns of losing
control over asylum and immigration policies, rather than civil justice cooperation
matters.28
Therefore, both the UK and Ireland soon expressed their intention to
participate fully in EU activities related to civil justice cooperation at the Justice and
Home Affairs Council meeting that took place on 12 March 1999.29
Denmark could also
waive part of the Protocol and easily participate to procedural cooperation measures
taken at the EU level. Alternatively, Denmark could conclude international law treaties
with the EU, which however could jeopardise uniformity and legal certainty in the EU,
ending up with a mixture of EU law measures and international law ones.
Overall, the new version of Article 81 TFEU has expanded the EU competence
in civil justice cooperation, confirming it constitutes the official legal basis for the
introduction of EU civil procedure rules. The explicit reference to the approximation of
national laws for the promotion of effective access to justice, in element (e), testifies in
favour of the broader suitability of horizontal procedural measures based on Article 81
TFEU for a coherent approach to EU civil procedure law. This suggestion, however,
presupposes a fundamental reconsideration of the inherent limitations of Article 81
TFEU, presumably emanating from its initial PIL status. The next sections will further
investigate this proposal, also providing some preliminary thoughts on the conformity
of future EU civil procedure measures with the principles of subsidiarity and
proportionality.
6.3 The way forward
28 See also, Basedow (n 4) 695-696. 29 Commission, ‘Proposal for a Council Regulation (EC) on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters’ COM (1999) 348 final, 5, under point 2.2. 29 For instance, both the UK and Ireland are bound by the European Small Claims Regulation 861/2007, the
Regulation for a European order for payment procedure 1896/2006, the Regulation on cooperation
between the courts of the Member States in the taking of evidence in civil or commercial matters
1206/2001, and the Regulation on the service in the Member States of judicial and extrajudicial
documents in civil or commercial matters 1348/2000.
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Initial procedural measures adopted under the then Article 65 EC (now 81
TFEU) had a primarily international private procedural law scope. These included
measures on international jurisdiction, recognition, and enforcement of foreign
judgments, cross-border service of documents, and cross-border taking of evidence.
They aimed to coordinate national legal systems, and enable them to communicate
effectively, allowing national legal acts and official documents to take place or have an
effect across the Member States.30
However, international civil procedural law should
be distinguished from EU civil procedural law, which is aimed at the approximation of
Member States’ laws and regulations.31
Unfortunately, the Lisbon Treaty has not
managed to draw this distinction as clearly as is necessary; despite explicitly referring
for the first time to EU measures approximating Member States’ laws and regulations, it
has maintained some of the restrictive language of the previous versions.
In this section, I will revisit the relationship between Article 81 TFEU and
Article 114 TFEU to identify the most appropriate legal basis for future EU initiatives
in the area of civil procedure law. Based on these findings, I will reconceptualise the
existing limitations for a coherent approach to EU civil procedure law, resulting from
the general Area of Freedom, Security, and Justice and the territorial scope of the new
legal basis of Article 81 TFEU. I will focus on two important limitations to the existing
EU competence in civil justice cooperation, namely the mutual recognition principle
established in Article 67(4) TFEU and the ‘cross-border implications’ requirement in
Article 81 TFEU. My aim is to reconceptualise these limitations in light of the scope of
application of the fundamental right of access to justice in Article 47 CFREU. In the
next section, I will test this proposal against the principles of subsidiarity and
proportionality.
30 X E Kramer ‘Procedural Harmonisation in a European Context’ in X E Kramer and C H van Rhee (eds), Civil Litigation in a Globalising World (T.M.C. Asser Press 2012) 123. 31 X E Kramer, ‘A Major Step in the Harmonization of Procedural Law in Europe: the European Small
Claims Procedure, Accomplishments, New Features and Some Fundamental Questions of European
Harmonization’ in AW Jongbloed (ed), The XIIIth World Congress of Procedural Law: The Belgian and
Dutch Reports (Intersentia 2008) 280.
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6.3.1 Recasting the relationship between Articles 81 and 114 TFEU: harmonisation
through the backdoor?
In the previous chapter, I discussed how the EU has already used Article 114
TFEU to introduce EU civil procedure rules in the area of IP rights protection.32
The
same provision is also one of the potential legal bases for a future collective redress
mechanism.33
Article 114 TFEU (ex Article 95 EC) explicitly provides that it is
applicable to the extent there is no other specific Treaty provision on a certain issue of
the Internal Market. Under the pre-Lisbon regime, Article 65 EC (now 81 TFEU)
required that EU civil justice cooperation measures be necessary for the proper
functioning of the Internal Market. As a result, it constituted a lex specialis34
to the
general internal market provision of Article 114 TFEU, meaning that the EU should
assume competence to legislate in civil justice matters solely under the provisions and
limitations of the particular legal basis of Article 65 EC.35
In the post-Lisbon era, the Internal Market plays a considerably diminished role
in the formulation of Article 81 TFEU and civil justice measures can be envisaged even
when they are not necessary for the proper functioning of the Internal Market.36
However, to the extent civil procedure rules are adopted due to Internal Market
considerations, Article 81 TFEU remains the appropriate, special legal basis,
embodying the level playing field, and competition objectives of the legal basis of
Article 114 TFEU, which is existent in the policy and legislative documents related to
IP rights, damages in antitrust cases, and collective redress for consumer claims. This is
even more apparent as Article 81 TFEU also expressly provides for the approximation
of Member States laws and regulations in the area of civil justice cooperation.
32 See above, ‘5.2 Sectoral EU civil procedure rules: the example of IPRED’ 135. 33 See, P Buccirossi et al., Collective Redress in Antitrust: Study (European Union 2012) 57-58
http://www.europarl.europa.eu/committees/en/studiesdownload.html?languageDocument=EN&file=7435
1 accessed 22 October 2012. 34 See, S Peers, EU Justice and Home Affairs Law (3rd edn, OUP 2011) 613. 35 Ibid, 614; G R de Groot and J J Kuipers, ‘The new provisions on Private International Law in the
Treaty of Lisbon’ (2008) 1 MJ 109, 112. With regard to Article 65 EC (now 81 TFEU), see: Remien (n 4)
72-73; A Dickinson, ‘European Private International Law: Embracing New Horizons or Mourning the
Past?’ (2005) 1 Jour.P.I.L. 219; Basedow (n 4); Staudinger and Leible (n 7). 36 See above, ‘6.2.1 Key changes in the post-Lisbon era’ 186.
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More importantly, the approximation of laws based on Article 114 TFFU has a
primarily substantive law scope, providing rules for the free movement of goods,
services, and capitals. As a result, it should serve as a the appropriate legal basis for the
adoption of measures that have the smooth functioning of the Internal Market as their
primary object, only promoting civil justice cooperation at an incidental or subsidiary
level.37
This becomes even more apparent in the 2008 Caffaro case, where Advocate
General Trstenjak investigated the EU competence to provide rules affecting Member
States’ enforcement procedures.38
Specifically, the Advocate General compared the
scope of Article 65 EC (now 81 TFEU) based EU civil procedure measures, with that of
procedural rules pursuant to a directive adopted based on Article 95 EC (now 114
TFEU). Accordingly, she argued that the EU could ‘not harmonise all the rules relating
to late payments in commercial transactions’ based on Article 95 EC, but ‘only certain
specific rules intended to combat such delays, namely, rules on interest for late
payments (Article 3), retention of title (Article 4) and procedures for recovery of
unchallenged claims (Article 5)’.39
Even in these specific areas, EU competence could
not impose on Member States the obligation to introduce a new procedure for the
recovery of unchallenged claims, as was initially provided in the original proposal for
Directive 2000/35.40
On the contrary, she submitted that the EU would have ‘general
powers to regulate the procedures for forced execution’ in cases of late payment in
commercial transactions involving cross-border elements under Article 65 EC on civil
justice cooperation.41
This explains why the drafters of the various civil justice instruments have
traditionally searched for legal bases outside Articles 100 and 100a EC, which largely
correspond to what is now Article 114 TFEU. These provisions existed even prior to the
Amsterdam Treaty and the communitarisation of the Area of Justice, permitting direct
37 Article 26 TFEU. See also: Peers (n 34) 612. 38 Case C-265/07 Caffaro Srl v Azienda Unità Sanitaria Locale RM/C [2008] ECR I-07085, Opinion of AG Trstenjak, paras 28ff. 39 Ibid, paras 28-29. 40 Commission, ‘Proposal for a European Parliament and Council Directive combating late payment in
commercial transactions’ COM (1998) 126 final. 41 Caffaro Srl v Azienda Unità Sanitaria Locale RM/C (n 39) paras 32 and 44.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
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EU action, as opposed to the intergovernmental proceedings under Articles 220 and K.1
EC, which were actually used for the adoption of the initial instruments of civil justice
cooperation.42
In other words, civil justice legislation cuts across the entire spectrum of
substantive private law, be it consumer protection, competition law, intellectual
property, etc. In addition, civil procedure rules do not actually affect peoples’ access to
the Internal Market, but rather their relationships during disputes.43
Of course, civil
procedure law fulfils an enforcement of substantive law function, and, as such, is
important for the practical applicability of existing EU law substantiating the premises
and requirements of the Internal Market.44
However, even from this perspective, the link
with the Internal Market is indirect and insufficient for the adoption of future EU civil
justice measures based on Article 114 TFEU.45
Using Article 114 TFEU as a legal basis for the approximation of civil justice
laws could be seen as a means to circumvent the scope and reach of Article 81 TFEU.46
This is why the EU legislature has struggled to justify the choice of Article 114 TFEU
as the correct legal basis for the adoption of the IPRED. It did that based on the
following considerations. On the one hand, IP rights protection is important for the
realisation of the Internal Market through the promotion of innovation and economic
growth; on the other hand, the directive does not refer to civil justice cooperation
matters, of the kind that would be regulated under Article 81 TFEU.47
As I have already
argued, IPRED touched on core procedural matters with implications on the entire civil
42 See above, ‘6.2 Civil justice cooperation after the Lisbon Treaty: a new era?’185. 43 See, J Isräel, ‘Conflicts of Law and the EC after Amsterdam- A Change for the Worse?’ (2000) 7 MJ
91. 44 See above, ‘1.2.2 The fundamental goals and functions of civil justice’ 19. 45 The legal basis must be identified pursuant to the principal aim of the proposed EU measure: case C-
211/01 Commission v Council [2003] ECR I-8913, paras 38-40; case C-300/89 Titanium Dioxide [1991]
ECR I-2867, para 21. In addition, Hess draws a distinction between the reactive legal harmonisation
based on Article 95 EC (now 114 TFEU), which ‘reacts primarily to distortions of competition and
similar restraints to market freedoms’; and the active legal harmonisation based on Article 65 EC (now 81 TFEU), which provides the EU with ‘subject-matter oriented competence […] similar to the policies of
consumer protection and the environment for the creation of positive standards’. B Hess, ‘The Integrating
Effect of European Civil Procedure’ (2002) 4(1) Eur. J. L. Reform 3, 13. 46 See inter alia, Peers (n 34) 614. 47 See, IPRED preamble, points 9-11.
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justice system, rather than solely on IP rights protection.48
Therefore, the reason why
the drafters of the IPRED tried to establish Article 114 TFEU as the appropriate legal
basis has arguably been the avoidance of the territorial scope of Article 81 TFEU, which
is limited to matters having cross-border implications. The same holds true for damages
actions and collective redress arrangements in antitrust and consumer cases, where any
prospective sectoral EU legal instruments would most likely be applicable to both
domestic and cross-border disputes.49
6.3.2 Reconsidering the general premises of EU civil justice cooperation
Despite the limitations of using Article 81 TFEU as a legal basis as identified
above,50
namely its application to cross-border disputes and the English, Irish, and
Danish opt-outs, I argued that it nonetheless constitutes the appropriate legal basis for
civil procedure harmonisation in the EU for the promotion of access to justice. On the
one hand, Article 81 TFEU still constitutes lex specialis of the legal basis of Article 114
TFEU for the adoption of civil procedure rules necessary for the proper functioning of
the Internal Market. On the other hand, civil procedure law in general can only
indirectly facilitate access to the Internal Market, essentially regulating the relationships
of the parties to a dispute, enforcing their substantive EU law rights and obligations.
Bearing this in mind, Article 81 TFEU could offer adequate constitutional
legitimation for a coherent approach to EU civil procedure law.51
By linking the
reference to ‘effective access to justice’ in Article 81(2)(e) TFEU with Article 47
CFREU, I attempt to apply the same meaning of access to justice to both provisions,
transplanting the regulatory scope of Article 47 CFREU to the relevant provision of
Article 81 TFEU. This proposition will not result in an extension of EU competence in
48 See above, ‘5.2.1 An instrument for harmonising core aspects of civil procedure?’ 138. 49 See especially the ‘Summary Table’ No 10 in Buccirossi et al., (n 33) 55-62. However, in case of
adoption of a general, horizontal EU collective redress mechanism, the European Parliament seems to opt
for a limited territorial scope, namely for cross-border disputes, as these are currently narrowly construed
under Article 81 TFEU. European Parliament, ‘Resolution of 2 February 2012 on ‘Towards a Coherent European Approach to Collective Redress’ 2011/2089(INI), 13
http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//NONSGML+REPORT+A7-2012-
0012+0+DOC+PDF+V0//EN accessed 18 February 2013. 50 See above, ‘6.2.2 New rules, old problems?’ 191. 51 See, Tulibacka (n 3) 1561.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
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the area of civil justice cooperation, nor an amendment of its specifications in the Treaty
text. It merely puts forward a harmonious and systematic interpretation of EU primary
law, an indispensable part of which is, as of December 2009, the Charter of
Fundamental Rights of the European Union. Under this interpretative stance, the
fundamental procedural right of Article 47 CFREU will influence the exercise of the EU
civil justice competence to the direction of facilitating dispute resolution and
enforcement of EU law based rights before national courts.52
6.3.2.1 Mutual Recognition
Both Articles 67(4) TFEU and 81 TFEU refer to the mutual recognition of
judicial and extrajudicial decisions as the guiding principle in civil justice cooperation.
The principle of mutual recognition focuses on the facilitation of the recognition and
enforcement of judgments from one Member State to another. It is not a principle aimed
at guiding the approximation of Member States’ national procedural laws and
regulations. In other words, the mutual recognition principle and the approximation of
Member States’ laws and regulations are two distinct aims, both grouped under the
broad policy area of civil justice cooperation. The former is primarily concerned with
the enforcement of decisions where a border has to be crossed, whereas the latter relates
to securing access to justice for the acquisition of a decision regardless of whether or
not it will have to be enforced abroad in the end.53
As a result, mutual recognition is not driven by the promotion of access to
justice considerations, nor does it have an approximation of Member States’ laws
overall objective. Procedural approximation in the form of minimum procedural
standards, demonstrated by the scope of the mutual recognition programme, constitutes
only an ancillary accompanying measure not an end in itself,54
leaving internal legal
orders largely intact. Accordingly, mutual recognition and accompanying minimum
52 C Engel, ‘The European Charter of Fundamental Rights, A Changed Political Opportunity Structure and its Dogmatic Consequences’ (2001/2) MPI Collective Goods Preprint 15-16
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=269312 accessed 06 March 2013. 53 Commission, ‘Green Paper on a European Order for Payment Procedure and on Measures to simplify
and speed up Small Claims Litigation’ COM (2002) 746 final, 14. 54 Ibid.
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procedural standards are solely aimed at enabling the communication and mutual trust
between the various national legal orders in the EU.55
That being said, this tactic could
facilitate effective access to cross-border justice in attempting to gradually dispense
with any exequatur procedure. For instance, the abolition of the exequatur in the recast
of the Brussels I Regulation could lead to the timely execution of judgments across the
borders, hence facilitating claimants’ access to courts;56
enforcement could nonetheless
be denied where the judgment under discussion has not been delivered under fair
proceedings.57
Even so, EU instruments following the principle of mutual recognition
do not introduce concrete procedural standards of access to justice, striking a clear
balance between the interests of the claimants in enforcing their EU rights and those of
the defendants in constraining such enforcement.
Article 67(4) TFEU provides: ‘[t]he Union shall facilitate access to justice, in
particular (emphasis added) through the principle of mutual recognition of judicial and
extrajudicial decisions in civil matters’. The phrase ‘in particular’ indicates that the
principle of mutual recognition is only one – certainly not the only one – option for the
facilitation of access to justice in the EU. This interpretation is consistent with the
French version of the Treaty: ‘nottament’; the German version: ‘insbesondere’; and the
Greek version: ‘ιδίως’. This is confirmed by the formulation of Article 81 TFEU
explicitly providing that EU institutions can approximate Member States’ national rules
and regulations in order to promote among others, effective access to justice. Recent
instruments in the area of civil justice cooperation, such as the European Small Claims
Procedure,58
constitute a primary indication that Article 81 TFEU is not confined to the
coordination of judicial authorities, such as, for instance, the Service of Documents
55 Commission, ‘Action Plan Implementing the Stockholm Programme’ COM (2010) 171 final, 4. See
also, T Andersson, ‘Harmonization and Mutual Recognition: How to handle Mutual Distrust’ in M
Andenas, B Hess, and P Oberhammer (eds), Enforcement Agency Practice in Europe (BIICL 2005) 247. 56 See, X Kramer, ‘Abolition of exequatur under the Brussels I Regulation: effecting and protecting rights
in the European judicial area’ (2011) 4 NIPR 633, 639. 57 This has been judicially inferred from the public order provision in Article 46 of the Brussels I
Regulation. See for instance, case C-7/98 Dieter Krombach v André Bamberski [2000] ECR I-1935, para
43. 58 See above, ‘5.3 Horizontal EU civil procedure rules: the example of the European Small Claims
Procedure’ 150.
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202
Directive, but is also driven by a self-standing aim of promoting access to justice in the
EU.59
A genuine harmonisation of national procedure rules for the promotion of
effective access to justice in the EU could thus be envisaged in future EU instruments
based on Article 81(2)(e) TFEU. This approach could remedy national institutional
inefficiencies for the enforcement of EU law rights and obligations, while guaranteeing
procedural fairness and efficiency of proceedings.60
6.3.2.2 ‘Cross-border implications’
The Commission has systematically favoured an expansive interpretation of the
cross-border provision, suggesting that EU legislation could approximate procedural
rules applicable to purely domestic disputes too.61
Procedural law by its nature may
have ‘cross-border implications’ since discrepancies in judicial systems in Member
States can distort competition in the Internal Market.62
Approximation of civil
procedure rules could ensure access to justice under equal conditions. Unless we accept
such a broad interpretation of the “cross-border” requirement, no unified definition to
this term can be realised and every legislative act would have to be investigated on a
59 See also to that effect: B Hess, ‘The Brussels I Regulation: recent case law of the Court of Justice and
the Commission’s proposed recast’ (2012) 49 CML Rev. 1075; Kramer, ‘Abolition of exequatur under
the Brussels I Regulation: effecting and protecting rights in the European judicial area’ (n 56) 635. 60 On the necessity for something more than existing mutual recognition minimum standards in order to
promote the right of defence, see: Andersson (n 55) 250: ‘In order to […] promote the rights of defence,
minimum standards should not allow for too many variations and should not rely too heavily on domestic law’. 61 Commission, ‘Communication from the Commission to the Council and the European Parliament: Area
of Freedom, Security and Justice: Assessment of the Tampere programme and future orientations’ COM
(2004) 401 final, 11: ‘[…] it will be necessary to avoid a situation where in each
Member State there are two separate legal regimes, one relating to the disputes with a cross-border
implication and the other to purely internal disputes’. See also, Economic and Social Committee,
‘Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the
European Parliament and of the Council creating a European order for payment procedure’ COM(2004)
173 final, point 1.5:
The Commission has decided to extend the scope of the single order for payment procedure to
national disputes, in order to ensure equal treatment for all and to prevent distortion of competition between economic operators, in line with the EESC's opinion on the Green Paper,
whilst ensuring that the procedure is compatible with the principles of proportionality and
subsidiarity. 62 Commission, ‘Proposal for a Regulation of the European Parliament and of the Council establishing a
European Small Claims Procedure’ COM (2005) 87 final, 6.
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separate basis, complicating the enforcement of these instruments and increasing the
uncertainty and fragmentation in the EU judicial context.63
Such a broad interpretation of the ‘cross-border implications’ provision is not
embraced by all scholars in the literature. On the contrary, it is seen as far-reaching,64
and as rendering null and void the explicit limitation imposed by the ‘cross-border’
provision.65
The main risk of adopting such a broad understanding is that EU
institutions may end up attributing a cross-border character to all civil procedure law
matters, without further investigation. If the drafters of Article 81 TFEU wished to
provide the EU with such an extensive competence in the area of civil justice
cooperation, there would have been no need to qualify ‘civil matters’ with the phrase
‘having cross-border implications’. There must have been a good reason for this phrase
to be included in the wording of the provision under discussion.66
Nevertheless, it should be underscored that, according to earlier literature on ex
Article 65 EC (now 81 TFEU) the ‘cross-border implications’, reference was only
added to the text of the then Amsterdam Treaty at the very last minute. The addition
was proposed by the then UK Prime Minister, Tony Blair, who apparently exercised
strong political pressure in order to emphasise the strictly economical character of the
Union.67
That the Union is no longer confined to economic objectives, pursuing social
and political goals too, is no longer disputed.68
The Lisbon Treaty has not only included the provision on effective access to
justice in the legal basis of Article 81 TFEU, but has also given binding force, equal to
63 Ibid, point 2.2. 64 Peers (n 34) 611. 65 Van der Grinten (n 4). 66 See, Hess, Europäisches Zivilprozessrecht (n 1) 35. See also: House of Lords,’23rd Report of Session
2005-06: European Small Claims Procedure – Report with Evidence’ (HL Paper 118) 19 (n.58),
http://www.publications.parliament.uk/pa/ld200506/ldselect/ldeucom/118/118.pdf accessed 17 March
2013; Peers (n 34) 612. 67 See inter alia: M Traest, ‘Development of a European Private International Law and the Hague Conference’ (2003) 5 Yrbk Priv Intl L 228; G Betlem and E Hondius, ‘European Private Law after the
Treaty of Amsterdam’ (2001) 1 E.R.P.L. 10. 68 One needs to look at inter alia, the general provisions of the TEU (mainly Articles 3 and 4 TEU), the
CFREU and the categories of fundamental rights introduced (social, political, economic), as well as the
Citizenship provisions of Articles 21-24 TFEU.
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that of primary EU law, to the CFREU. Consequently, the fundamental procedural EU
right to an effective remedy (Article 47 CFREU) has been created, for disputes arising
out of substantive EU rights and freedoms. Article 47 CFREU, which binds EU
institutions, provides for a right to effective remedy for all rights guaranteed under
Union law. It does not distinguish between cross-border and domestic disputes. More
importantly, there is extensive CJEU case law confirming that the fundamental rights
protection in the EU refers to matters falling within the scope of Union law.69
Therefore,
the reference to access to justice in Article 81 TFEU should be read in conjunction with
the primary EU provision on access to justice, namely Article 47 CFREU.
Taking into account the direct effect and supremacy of EU law, EU substantive
law rights apply to domestic relationships in the Member States, and, therefore, so
should the procedural measures the EU enacts to facilitate the enjoyment and private
enforcement of these rights. As a result, Article 81 TFEU should be reconceptualised, as
a minimum prerequisite, to apply in the field of EU law. Future measures that aim to
facilitate effective access to justice in judicial cooperation in civil matters should no
longer maintain the dichotomy between cross-border and domestic disputes.
This further suggests that the reference to matters with ‘cross-border
implications’ in Article 81(1) TFEU should be interpreted broadly, encapsulating all
matters with an EU, rather than a cross-border, dimension.70
In other words, I argue that
a matter can have cross-border implications, in the sense of Article 81 TFEU, if it
merely falls within the scope of EU law. This is the case where, for instance, two
69 See inter alia: case C-260/89 Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon
Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas and others
(ERT) [1991] ECR I-2925; case C-159/90 SPUC v Grogan [1991] ECR I-4685, para 31; case C-368/95
Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer Verlag [1997] ECR I-
3689, paras 24-33. 70 See also: M Storme, ‘Improving Access to Justice in the Europe’ (2010) Teka Kom. Praw. – OL PAN
207, 214; B Hess, ‘Procedural Harmonisation in a European Context’ in X E Kramer and C H van Rhee
(eds), Civil Litigation in a Globalising World (T.M.C. Asser Press 2012) 171: The better solution would be a reconsideration of Art. 81 TFEU and a careful redefinition of the
compromise of 2003 relating to the interpretation of the ‘cross-border’ threshold: the wording of
Art. 81 TFEU permits a broader reading which would empower the Union to enact legislation in
procedural matters for the swift and efficient enforcement of Union law, especially with regard
to the Internal Market and the free movement of persons in the European Judicial Area.
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litigants, habitually residing in the same Member State, adjudicate before the competent
national court on a right they derive from EU law. There is an indispensable
international dimension to this matter, which does not constitute a purely internal case,
but one with cross-border implications in the sense that it directly relates to the
functioning of the EU supranational legal order. Such large scale EU law-limited
intervention in national civil procedural regimes has already been envisaged in one of
the earlier drafts of the IPRED. The initial Commission proposal provided in Article
2(1) that the directive should apply to ‘any infringements of the rights deriving from
Community and European provisions on the protection of intellectual property rights, as
set out in the Annex to the Directive, and the provisions adopted by the Member States
in order to comply with those provisions’.71
A broad understanding of the cross-border provision of Article 81 TFEU would
lead to both a wider scope of application of the various EU civil procedure measures,
and to increased effectiveness. By linking EU civil procedure with the enforcement of
substantive EU law before national courts, both domestic and transnational disputes
come into the discussion. This is particularly important considering that the great bulk
of Union law adjudication occurs in domestic disputes between individuals and the
State, or other individuals.72
It will also remedy a fundamental paradox in the current
interpretation of the ‘cross-border’ requirement. Specifically, parties not residing in the
Member State whose court is seized of the dispute may avail themselves of EU civil
procedure rules; on the contrary, litigants residing in the Member State whose court is
71 See, Commission, ‘Proposal for a Directive of the European Parliament and of the Council on measures
and procedures to ensure the enforcement of intellectual property rights’ COM (2003) 46 final, 19.
However, the final version of the directive explicitly provides in Article 2(1) IPRED that its rules ‘[…]
shall apply […] to any infringement of intellectual property rights as provided for by Union law and/or
[emphasis added] by the national law of the Member State concerned’. 72 For instance, according to the Heidelberg Report and statistical data from 2003 to 2005, the jurisdiction
rules of Brussels I Regulation have been applied in a relatively small number of cases, ranging from less
than 1% of all civil cases to 16% in border regions. See: B Hess, T Pfeiffer, and P Schlosser, ‘Report on the Application of the Regulation Brussels I in the Member States’ (Study JLS/C4/2005/03) 16
http://ec.europa.eu/civiljustice/news/docs/study_application_brussels_1_en.pdf accessed 11/03/13.
Additionally, based on the EEC-Net Report on the application of the ESCP, 47% of the respondents said
that only 0-5% of consumer complaints have been handled with the ESCP, whereas 53% of respondents
had no statistical data.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
206
seized of the dispute do not have this possibility, even if in both cases the dispute relates
to the same EU law matter.73
This proposal is not without problems. For one thing, switching between
different procedural mechanisms, EU based ones and national ones, could lead to
unnecessary complication and burden for the deciding judges.74
Such a situation would
presumably have a considerable toll on the quality of the overall judicial system, be it
for the adjudication and enforcement of EU law provisions, or national ones.75
It is no
coincidence that, unlike substantive law, courts have traditionally denied to apply
foreign procedural rules, stretching as far as possible the scope of procedural law and
applying the rules of the forum as extensively as possible.76
However, two important considerations could considerably mitigate the
limitations and inefficiencies of a dual system. Firstly, the interpretation of cross-border
implications as synonymous to matters in the field of Union law and the subsequent
mandatory application of EU civil procedure rules to Union law matters adjudicated
before national courts would only require the familiarisation of judges with these
additional EU procedural rules, as opposed to 28 different civil justice regimes in the
context of PIL. Provided these rules are of a mandatory nature for the enforcement of
substantive EU law, national judges and EU citizens will have the possibility to
73 See: C M G Himsworth, ‘Things Fall Apart: the Harmonisation of Community Judicial Procedural
Protection Revisited’ (1997) 22(4) ELR 291, 309; Storme, ‘Improving Access to Justice in the Europe’ (n
70) 214. 74 In the context of PIL and the application of foreign procedural rules by national judges: J J Fawcett, J
M Carruthers, and Sir P North, Cheshire, North & Fawcett: Private International Law (14th edn, OUP
2008) 79. 75 See to that effect: The Law Society of England and Wales, ‘Towards a Coherent European Approach to
Collective Redress: Response of the Law Society of England and Wales’ (2011) 3
http://ec.europa.eu/competition/consultations/2011_collective_redress/law_society_of_england_and_wale
s_en.pdf accessed 22 November 2012. In the context of optional procedural harmonisation in the EU: G
Wagner, ‘Harmonisation of Civil Procedure: Policy Perspectives’ in X E Kramer and C H van Rhee (eds), Civil Litigation in a Globalising World (T.M.C. Asser Press 2012) 100-101; M Eliantonio, ‘The Future of
National Procedural Law in Europe: Harmonisation vs Judge-Made Standards in the Field of
Administrative Justice’ (2009) 13(3) EJCL 8 http://www.ejcl.org/133/art133-4.pdf accessed 24 March
2013. 76 Fawcett, Carruthers, and North (n 74) 79.
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familiarise themselves with these rules, recognising and treating them as an
indispensable aspect of the national civil justice system, rather than a ‘Fremdkörper’.77
Secondly, by providing for procedural rules that are applicable in an obligatory
and exclusive fashion in national legal orders in cases of cross-border or domestic
dispute resolution and enforcement in the field of EU law, a wider spectrum of
prospective litigants is covered, essentially promoting access to justice considerations in
the EU in accordance with Articles 47 and 51 CFREU. Mandatory measures for EU law
disputes could also contribute to the creation of a level-playing field in the Internal
Market, setting the foundations for a Single Area of Justice for all, where litigants can
approach courts as easily as in their own country, without being discouraged by the
complexity of Member States’ procedural systems.78
Finally, they could reduce the
fragmented character of EU civil procedure law, and offer a coherent, realistic,
competitive alternative to the diverse domestic procedures embedded in national
procedural regimes.79
Ultimately, EU civil procedure rules could constitute a source of inspiration for
the subsequent adaptation of purely national, non-EU law related procedural rules. This
has effectively started occurring in the area of civil justice cooperation and the creation
of EU alternative dispute resolution mechanisms, namely the Mediation Directive.80
Although this directive has introduced rules on voluntary mediation for cross-border
disputes, many Member States, such as Italy,81
Greece,82
and Germany83
have expanded
77 Term borrowed from: W van Gerven, ‘A Common Law for Europe: The Future Meeting the Past?’
(2001) 4 E.R.P.L. 485. For more detailed analysis of a mandatory EU civil procedure scheme see below,
‘6.4.2 The principle of proportionality’ 212. 78 ‘Communication from the Commission to the Council and the European Parliament: Area of Freedom,
Security and Justice: Assessment of the Tampere programme and future orientations’ (n 61) 11. 79 See also below, ‘6.4.2 The principle of proportionality’ 212. 80 Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain
aspects of mediation in civil and commercial matters [2008] OJ L136/3. For a comprehensive
examination of the individual provisions of the Mediation Directive see, inter alia: J Nolan-Haley,
‘Evolving Paths to Justice: Assessing the EU Directive on Mediation’ in Proceedings of the Sixth Annual Conference on International Arbitration and Mediation (forthcoming M Nijoff Publishers 2012)
http://ssrn.com/abstract=1942391 accessed 13 February 2013. 81 Decreto Legislativo n.28, ‘Attuazione dell’articolo 60 della lege 18 giuguo 2009, n.69, in material de
mediazione finalizzata alla concilliazione delle controversie civili e commercialli’ (2010). 82 N. 3898/2010 (ΦΕΚ Α’ /211) «Διαμεσολάβηση σε αστικές και εμπορικές υποθέσεις».
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
208
its scope of application for domestic disputes. A similar development could be
envisaged in civil justice measures for the promotion of effective access to justice in the
field of EU law, with Member States potentially applying them for non-EU law related
disputes too. This could gradually contribute to the development of a common EU legal
cultural identity, following from the right to effective access to justice and its
fundamental procedural guarantees.
Practically, this broader understanding of the cross-border implications
provision of Article 81 TFEU will eventually allow a combination of the most effective
aspects of existing approaches to civil procedure harmonisation from an access to
justice proactive point of view. This interpretation brings civil justice cooperation in the
context of EU law enforcement, as has been the case with both the CJEU and the
sectoral procedural rules. Accordingly, prospective EU civil procedure rules based on
Article 81(2)(e) TFEU will be applicable to both cross-border and domestic disputes
concerning the violation of directly effective Treaty rights and Regulation provisions,
damages claims for state liability in case of unimplemented or wrongly implemented
Directives, the violation of EU rights stemming from the indirect or incidental
horizontal direct effect of unimplemented Directives, and the violation of national rules
implementing EU secondary legislation. In addition, coming with the constitutional
guarantees for comprehensive and concrete rule-setting, EU civil procedure rules under
Article 81 TFEU will touch core procedural matters, such as evidentiary rules,
provisional relief, and the funding of litigation in a general fashion, actively promoting
all aspects of the right of access to justice, balancing competing interests, namely the
interests of the claimants, the defendants, and good administration of justice.
6.4 What is needed? The principles of subsidiarity and proportionality
[Footnotes continued on next page] 83 Entwurf eines Gesetzes zur Förderung der Mediation und anderer Verfahren der außergerichtlichen
Konfliktbeilegung, BT-Drs 17/5335, http://dipbt.bundestag.de/dip21/btd/17/053/1705335.pdf accessed 19
February 2013.
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The challenge for EU institutions is not to intervene into Member States’
national procedural regimes at all costs. The overarching aim is to guarantee the
enforcement and dispute resolution of claims based on EU law rights and obligations
under realistic conditions. This suggestion has significant repercussions with respect to
both the level of decision-making and the actual scope of the enacted rules. EU
institutions need to support, via concrete empirical evidence and cost-benefit analysis,
the desirability and feasibility of further action in the area of civil procedure law for the
promotion of the fundamental right of access to justice in the EU (Article 47 CFREU).84
Once such action is deemed necessary, it is for the EU legislature to come up with
horizontal, mandatory measures, applicable to EU civil law matters, in both domestic
and transnational disputes, based on Article 81(2)(e) TFEU. In doing so, it should take
into account interconnections and commonalities between different areas of procedural
law as well as sectors of substantive law. The substantive scope of this intervention will
follow from the fundamental procedural guarantees for an effective remedy and fair
trial, namely accurate, timely justice at a reasonable cost.85
This will ensure a coherent
intervention into national procedural rules, safeguarding only the fundamental
parameters of effective enforcement and judicial protection of legal rights, as
exemplified first in the European Convention,86
then in the CJEU case law on effective
judicial protection,87
and most recently in the binding EU Charter of Fundamental
Rights and Freedoms.88
Therefore, this final part of the analysis will involve a subsidiarity and
proportionality investigation of the proposed solution for coherent EU civil procedure
law. As seen from the Tobacco Advertising89
case, once EU competence is established,
84 G Cumming and M Freudenthal, Civil Procedure in EU Competition Cases before the English and
Dutch Courts (Vol 42, Kluwer Law International Wolters Kluwer Law & Business 2009) 33. 85 A A S Zuckerman, ‘Justice in Crisis: Comparative Dimensions of Civil Procedure’ in S Chiarloni, P
Gottwald, and A A S Zuckerman (eds), Civil Justice in Crisis (OUP 1999) 3-52. 86 Articles 6 and 13 ECHR. 87 See above, ‘2.3 The fundamental procedural guarantees of the right of access to justice: the standard of
protection’ 50. 88 Article 47 CFREU. See also above, ‘2 The Right of Access to Justice in the EU: In Search of a New
Role’ 39. 89 Case C-376/98 Germany v Parliament and Council [2000] ECR I-8419.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
210
an additional second step needs to be undertaken; that is, to investigate whether
Member States could effectively regulate a certain issue without EU intervention
(subsidiarity).90
Even if the EU should regulate an area, the measures adopted should be
proportional to the problem that it is aiming to address (proportionality).91
The
principles of subsidiarity and proportionality become handy whenever the EU
institutions need to establish this balance in casu, with regard to the various proposed
regulatory measures.92
As a result, this section is of essentially limited value, offering
only an overall first consideration of the subsidiarity and proportionality principles in
abstracto. The final answer as to the actual conformity of horizontal EU civil procedure
law measures with these principles will largely depend on the particularities and
specificities of these measures in concreto.
6.4.1 The principle of subsidiarity
Traditionally, the principle of subsidiarity does not play a fundamental role in
controlling the ambit and reach of EU action in the areas of shared competence. The few
CJEU cases focusing on the conditions of applicability of the subsidiarity principle93
have introduced a ‘proceduralised’ principle, exhausted in the EU legislature’s
obligation to provide reasoned statements why action at EU level is both essential and
more appropriate.94
It will be interesting to see whether the new Protocol No 2 will
boost the dynamic of the subsidiarity principle.95
Briefly, the Protocol provides that
within eight weeks from the date of transmission of a proposed EU measure, national
parliaments can send opinions stating the reasons why the proposed measure violates
90 Article 5(3) TEU. See: G A Bermann, ‘Competences of the Union’ in T Tridimas and P Nebbia (eds),
European Union Law for the Twenty-First Century (Hart Publishing 2004) 65. Bermann points out that
the issue of competence is interrelated with that of subsidiarity, yet it needs to be tackled independently.
The competence issue refers to the prior question of the subject of powers and the actual content of these
powers. In contrast, subsidiarity refers to the way Union competences are actually exercised once granted. 91 Article 5(4) TEU. 92 See, S Weatherill, Cases and Material on EU Law (OUP 2010) 614. 93 Case C-233/94 Germany v Parliament and Council [1997] ECR I-2405, paras 26-28; case 84/94 United
Kingdom v Council [1996] ECR I-5755, para 47; case C-377/98 Netherlands v European Parliament and Council [2001] ECR I-7079, paras 31-33. 94 G A Bermann, ‘Proportionality and Subsidiarity’ in C Barnard and J Scott (eds), The Law of the Single
European Market, Unpacking the Premises (Hart Publishing 2002) 86. 95 Protocol No 2 on the Application of the Principles of Subsidiarity and Proportionality (2010) OJ C
83/206. See, J Peters, ‘National Parliaments and Subsidiarity: Think Twice’ (2005) 1 EuConst 68.
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the subsidiarity principle.96
If 1/3 of national parliamentary votes decide that the
proposed measure does not comply with the principle of subsidiarity, then the EU
measure must be reviewed.97
Generally, the principle of subsidiarity promotes an ‘effectiveness-comparison’
between EU and State legislative measures. Clearly, where the EU adopts measures for
civil matters in the field of Union law, it makes little sense to argue that individual
Member States are best placed to develop such measures via un-coordinated,
spontaneous action.98
Furthermore, the EU needs to provide sufficient qualitative and
quantitative indicators on why the pursuance of a Treaty objective is better achievable
via measures taken at EU rather than State level. EU institutions should take into
account potential EU or State financial or administrative burdens before they can come
to a final judgment on the necessity for any EU action for the realisation of a Treaty
goal.99
This balancing activity could result in a situation where a Treaty objective may
indeed be more adequately regulated at an EU level, but when considering all
surrounding consequences of such an action, it may be preferable to opt for a less
effective, but also less damaging, action at State level.100
This stage of the subsidiarity
inquiry presupposes an adequately substantiated EU civil procedure law proposal.
96 Protocol No 2 on the Application of the Principles of Subsidiarity and Proportionality (n 95) Article 6. 97 Ibid, Article 7(2). See also, T Tridimas, ‘The European Court of Justice and the Draft Constitution: A
Supreme Court of the Union?’ in T Tridimas and P Nebbia (eds), European Union Law for the Twenty-
First Century (Hart Publishing 2004) 133-134. Tridimas suggests that such a scenario could be more
easily realised in Member States with weak governmental majorities or coalition governments, where
members of the parliament could exercise political force in a rather independent way. 98 Article 5(3) TEU. 99 Protocol No 2 on the Application of the Principles of Subsidiarity and Proportionality (n 95) Article 5. 100 P Biavati, ‘Is Flexibility a Way to the Harmonisation of Civil Procedural Law in Europe?’ in F Carpi
and M Lupoi (eds), Essays on Transnational and Comparative Civil Procedure (G Giappichelli Editore
2001) 90; Storskrubb (n 9) 43. See also: case C-58/08 The Queen, on the application of Vodafone Ltd and
Others v Secretary of State for Business, Enterprise and Regulatory Reform [2010] ECR I-04999, Opinion of AG Maduro, para 30; joined cases C-154/04 and C-155/04 The Queen, on the application of
Alliance for Natural Health and Others v Secretary of State for Health and National Assembly for Wales
[2005] ECR I-6451, paras 101-108; case C-110/03 Kingdom of Belgium v Commission of the European
Communities [2005] ECR I-2801, paras 56-58; K Lenaerts and P Van Ypersele, ‘Le principe de
subsidiarité et son contexte: Étude de l’article 3B du traité CE’ (1994) 30 CDE 100.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
212
6.4.2 The principle of proportionality
Additionally, the actual content and form of EU measures should be
proportional to the particular Treaty objectives pursued.101
EU measures should be
scrutinised with regard to their appropriateness for the attainment of the Treaty
objective, their necessity for the realisation of that objective, and their proportionality
stricto sensu.102
Generally, the CJEU’s review standard is a manifestly inappropriate,
manifestly unnecessary, and manifestly disproportionate EU measure.103
This is due to
separation of powers questions, mainly between the legislature and the judiciary,
involved in the proportionality investigation. There is a high level of respect for EU
institutions’ policy decisions and range of discretion.104
An even more limited
scrutinising action is seen in cases involving extensive scientific and complex cost-
benefit analyses that the CJEU realistically might not be able to crosscheck.105
Firstly, opting for a horizontal approach to EU civil procedure law offers the
possibility for a more systematic consideration of the right of access to justice. This
possibility covers both the broader procedural themes of the adopted measure, as well as
the particular provisions in conformity with the guarantees of procedural fairness and
good administration of justice (rationality test).106
Secondly, the costs for the
101 Article 5(4) TEU. 102 See: G De Búrca, ‘The Principle of Proportionality and its Application in EC Law’ (1993) 13 YEL
113; Hess, Europäisches Zivilprozessrecht (n 1) 73. 103 Case C-84/94 United Kingdom of Great Britain and Northern Ireland v Council of the European Union [1996] ECR I-5755; case C-233/94 Germany v Parliament and Council [1997] ECR I-02405; case
426/93 Federal Republic of Germany v Council of the European Union [1995] ECR I-3723; case C-
280/93 Federal Republic of Germany v Council of the European Union (The Bananas) [1994] ECR I-
4973. 104 Tridimas speaks of a ‘soft proportionality test’ applicable by the ECJ when reviewing EU policy
measures in: T Tridimas, The General Principles of EU Law (OUP 2006) 138. 105 See: De Búrca, ‘The Principle of Proportionality and its Application in EC Law’ (n 102) 105-125; F G
Jacobs, ‘Recent Developments in the Principle of Proportionality in European Community Law’ in E Ellis
(ed), The Principle of Proportionality in the Laws of Europe (Hart Publishing 1999). According to settled
case law, the EU legislature enjoys wide discretion in matters with complex economic implications. The
Court’s review activity is limited to the establishment of manifest error, or misuse of powers, or clear disregard of the limits of discretion. See: case T-180/00 Astipesca, SL v Commission of the European
Communities [2002] ECR II-3985, para 79; joined cases C-27/00 and C-122/00 Omega Air and Others
[2002] ECR I-2569, para 64; joined cases C-248-9/95 SAM Schiffahrt and Stapf v Germany [1997] ECR
I-4475, para 23. 106 See, Bermann, ‘Proportionality and Subsidiarity’ (n 94) 80.
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implementation of these measures will be proportionate to the objective pursued,107
if
mandatory EU civil procedure measures apply to both domestic and cross-border
disputes in the field of EU law. This is due to the considerably higher volume of EU
law-related domestic disputes, leading to increased possibilities for the actual success of
the measures in national legal orders.108
Thirdly, proposed EU measures should be
proportionate to the objective pursued. In other words, in case of multiple appropriate
and necessary measures, the EU institutions should opt for the less restrictive one,
which inflicts less costs and burdens on all subjects involved.109
This could practically
mean that instead of a Regulation, a Directive or even a Recommendation might be
more proportionate for the achievement of the Treaty goal.
To begin with, a soft law instrument, for instance in the form of a
Recommendation or Opinion or alternatively, a best-practices publication, on certain
parts of civil procedural law could hardly address the requirements of effective dispute
resolution and enforcement of EU rights and obligations. The main reason is that it
completely lacks binding force, having only a guiding, advisory role. National
legislatures have little incentive to undertake reforms in national civil procedural rules
in accordance with the mandates incorporated in the soft-law instrument. Even if they
take reformative action, the result might be considerably different from one State to the
107 Ibid; joined cases C-96/03 and C-97/03 Tempelman and van Schaijk v Directeur van de Rijksdienst
voor de keuring van Vee en Vlees [2005] ECR I-1895, para 48; case C-86/03 Greece v Commission
[2005] ECR I-10979, para 96; case C-504/04 Agrarproduktion Staebelow [2006] ECR I-679, para 37. 108 Commission, ‘Extended Impact Assessment: Regulation of the European Parliament and of the Council establishing a European Small Claims Procedure’ SEC (2005) 351, 12: there is limited empirical
evidence regarding small claims disputes resolution in cross-border claims and problems identified
therewith. On the contrary, there is considerably more data available regarding the pursuit of domestic
small claims, such as their volume, their cost, duration, and complexity of litigation. 109 See, inter alia: ‘Proposal for a Regulation of the European Parliament and of the Council establishing
a European Small Claims Procedure’ (n 62) 6-7; Commission, ‘Proposal for a Regulation of the European
Parliament and of the Council creating a European order for payment procedure’ COM (2002) 173 final,
8-9. In the initial Commission proposals for EU legislative acts in the area of civil justice cooperation,
there was hardly any reference to the proportionality principle, other than that the measures adopted were
the minimum needed and did not exceed what was necessary for the attainment of certain objectives. See,
inter alia: Commission, ‘Proposal for a Council Regulation creating a European enforcement order for uncontested claims’ COM (2002) 159 final, 87, point 16; Commission, ‘Proposal for a Council Directive
to improve access to justice in cross-border disputes by establishing minimum common rules relating to
legal aid and other financial aspects of civil proceedings’ COM (2002) 13 final; Commission, ‘Amended
proposal for a Regulation of the European Parliament and of the Council on the service in the Member
States of judicial and extrajudicial documents in civil or commercial matters’ COM (2006) 751 final, 6.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
214
other, as each Member State would interpret and incorporate suggestions in a different
way.110
What is more, the promotion of the application of a fundamental right such as
that contained in Article 47 CFREU cannot be entrusted to mere soft law. EU
intervention in national procedural regimes needs to consider the fundamental right of
access to justice, striking a balance between the rights of the claimants and the defence.
Bearing this in mind, a soft law approach is both inappropriate and illegitimate to
address the interests at stake.
The next less intrusive option for EU civil procedure law would be minimum
harmonisation. Minimum standards do not abolish national procedural systems in their
entirety, allowing for more protective and effective national procedural rules. As a
result, they respect Member States’ cultural identity, also permitting some competition
between different jurisdictions.111
However, incorporation of these minimum standards
in the national legal order might as well compromise the overall quality of these
systems, especially where minimum standards are isolated, ad hoc provisions that
disregard interconnections and interdependencies between the various areas of
application of civil procedural law.112
Such a scenario could be detrimental for the
110 M A Lupoi, ‘The Harmonisation of Civil Procedural Law within the EU’ in J O Frosini, M A Lupoi, and Mi Marchesiello (eds), A European Space of Justice (A. Longo Editore 2006) 203: even if both
parties to a dispute agree to employ the rules incorporated in the soft law instrument, this has hardly any
practical repercussion on national civil proceedings, which remain immune from parties’ choices. By
analogy from contract law: Max Planck Institute for Comparative and International Private Law, ‘Policy
Options for Progress Towards a European Contract Law: Comments on the issues raised in the Green
Paper from the Commission of 1 July 2010, COM (2010) 348 final’ 7-12
http://ec.europa.eu/justice/news/consulting_public/0052/contributions/247_en.pdf accessed 16 March
2013. See however at a worldwide level: ALI/UNIDROIT, Principles of transnational civil procedure
(CUP 2006). 111 On national legal traditions and regulatory competition as inhibiting parameters in the process of civil
procedure harmonisation in the EU see above, ‘3.3 The Feasibility of EU Intervention into National Civil Procedural Law’ 83. 112 J Engström, The Europeanisation of Remedies and Procedures through Judge-made Law: Can a
Trojan Horse achieve Effectiveness? Experiences of the Swedish Judiciary (PhD Thesis, European
University Institute 2009) 33; M Dougan, National Remedies before the Court of Justice: Issues of
Harmonisation and Differentiation (Hart Publishing 2004) 132-136.
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effective enforcement of EU rights and obligations, rendering recourse to national
courts even more problematic and complicated.113
Finally, a 29th
regime approach could be envisaged. This was the case with the
ESCP, an optional, alternative mechanism, existing in parallel with national provisions
for cross-border disputes.114
Such an approach guarantees that Member States’ legal
cultural identity remains intact, constituting a conservative solution on a trial and error
basis.115
Regardless of the existence of the additional procedural mechanism, national
civil procedural mechanisms and rules on the same subject would offer a simultaneous,
alternative option116
for litigants to choose, either ex ante or ex post. This approach also
reinforces competition between national procedural regimes and the alternative
European mechanism, allowing for a variety of procedural options in accordance with
litigants’ expressed preferences.117
Finally, it also considerably reduces possibilities for
lobbyism, since it creates too many civil procedural fronts with which pressure groups
will have a difficulty to liaise systematically and effectively in order to promote their
interests.118
However, optional instruments raise some insurmountable problems, which are
aggravated when limited to cross-border disputes only. Although horizontal EU civil
procedural measures applicable to both cross-border and domestic disputes at an
113 Take for example the case of the IPRED provision on reimbursement of actual legal costs, which led
to an overall drop of IP cases in the Netherlands, where under the previously existing system, parties’
legal costs were compensated at a fixed rate. 114 See above, ‘5.3.2.3 An optional instrument as a transitional system?’163. 115 In the area of contract law: J M Smits, ‘The Practical Importance of Harmonisation of Commercial
Contract Law’ (Modern Law for Global Commerce Congress to celebrate the fortieth annual session of
UNICTRAL, Vienna, July 2007) 5 http://www.uncitral.org/pdf/english/congress/Smits.pdf accessed 20
March 2013; L Visscher, ‘A Law and Economics View on Harmonisation of Procedural law’ in X E
Kramer and C H van Rhee (eds), Civil Litigation in a Globalising World (T.M.C. ASSER PRESS 2012)
86. For an extensive analysis of the optional instrument approach in the area of substantive contract law
harmonisation see: W Kerber and S Grundmann, ‘An Optional European Contract Law Code: Advantages
and Disadvantages’ (2006) 21 Eur J Law Econ 215-236. 116 Kramer, ‘A Major Step in the Harmonisation of Procedural Law in Europe: the European Small
Claims Procedure Accomplishments, New Features and Some Fundamental Question of European
Harmonisation’ (n 31) 281; Van der Grinten (n 4)15. 117 By analogy from contract law: ‘Policy Options for Progress Towards a European Contract Law:
Comments on the issues raised in the Green Paper from the Commission of 1 July 2010, COM (2010) 348
final’ (n 110) 31; Visscher (n 115) 86. 118 On the impact of lobbyism on civil procedure law harmonisation see above, ‘3.3 The Feasibility of EU
Intervention into National Civil Procedural Law’ 83.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
216
optional basis could be more easily accepted as a transitional solution,119
being less
restrictive, they could not be maintained on a long-term basis. This is due to additional
costs associated with the need for judges to waste valuable judicial resources in order to
switch between the various procedural regimes.120
More importantly, as analysed
above,121
procedural law fulfils a fundamental function in parallel with conflict
resolution, that is policy implementation via the enforcement of law. Wasting limited
judicial resources solely for the sake of procedural diversity and the respect of legal
judicial tradition, whatever that tradition may be, does not comport with the overarching
objective of procedural law, which is the effective enforcement of law, here, of EU
law.122
One should also consider that unlike substantive law, civil procedure law is not
an end in itself. It gains value only to the extent that it can lead to the enforcement and
protection of legal rights and interests, and through that, to the maintenance of the rule
of law in civilised societies.123
As a result, under the current Treaty scheme, a parallel, mandatory regime for
cross-border and domestic disputes in the field of EU law could pass both the
subsidiarity and the proportionality test. Such mandatory measures applicable for the
dispute resolution and enforcement of EU law have the double advantage of securing
adequate familiarisation with their provisions for both national judges and EU citizens.
More importantly, they do not impose the burden of choice and information acquisition
on litigants, but rather on the paragons of justice systems, namely the judges. Under an
optional regime, it is primarily litigants, who should be aware of potentially more
effective procedural rules in case of cross-border disputes. By providing for procedural
rules applicable in an obligatory and exclusive fashion in national legal orders in cases
of cross-border or domestic dispute resolution and enforcement in the field of EU law, a
119 Storskrubb, Civil Procedure and EU Law, A Policy Area Uncovered (n 9) 229-30. 120 Fawcett, Carruthers, and North (n 74) 79. It could be presumed that the reason why lex fori has
traditionally been the governing rule in the area of procedural law is the inherent complexity of that type
of law that would render it too difficult for national judges to familiarise themselves with foreign procedures whenever the parties to the dispute have chosen so. 121 See above, ‘1.2.2 The fundamental goals and functions of civil justice’ 19. 122 See: Wagner (n 75) 100-101; Eliantonio (n 75) 8. 123 See, Engström (n 112) 34-35. On the derivative value of civil procedural law see also, Dougan (n 112)
103.
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wider spectrum of prospective litigants is covered, thus promoting access to justice
considerations in the EU in accordance with Articles 47 and 51 CFREU.
More importantly, these EU civil procedure rules become an indispensable part
of Member States national procedural regimes for matters in the field of EU law. Under
the 29th
regime approach, EU procedural rules should also become an integral part of
national procedural systems. However, the optional character in combination with the
considerably limited scope of application to only cross-border disputes saps the real
possibilities for genuine integration. For instance, in the case of the ESCP, empirical
evidence suggests that it is hardly used and many judges are completely unaware of the
existence of such an optional European procedure.124
Along these lines, the promotion
of judicial training in EU matters is of fundamental importance, facilitating the accurate
and consistent applicability of EU-originated procedural mechanisms.125
Accordingly,
Member States can genuinely integrate EU procedural mechanisms in their domestic
legal orders, offering a realistic ‘alternative’ to national choices.
6.5 A review of main findings
Civil procedure cooperation has played a central role in the European integration
process since the creation of the European Economic Community and has gained
increased significance with the various amending Treaties. The legislative history of
Article 81 TFEU shows that Member States traditionally regarded this policy area as
intergovernmental. Therefore, initial measures in this field, had a rather limited scope,
focusing on cross-border litigation, setting common rules of private international law on
certain subjects of the judicial process.126
However, the Treaty of Lisbon further
124 See above, ‘5.3.2.3 An optional instrument as a transitional system?’163. 125 See: Article 81(2)(h) TFEU and EJTN website: http://www.ejtn.net. 126 See inter alia: Council regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member
States of judicial and extrajudicial documents in civil or commercial matters [2000] OJ L 160/37; Council
Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement
of judgments in civil and commercial matters [2001] OJ L 12/1 (Brussels I Regulation).
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
218
promoted the objectives, framework, and modes of civil justice cooperation.127
Article
81 TFEU has diminished the importance of the Internal Market provision128
introducing
a further basis for civil procedure approximation measures in element (e) referring to
‘effective access to justice’ (emphasis added).129
Against this background, I argued that Article 81(2)(e) TFEU should be read in
conjunction with Article 47 CFREU, achieving a harmonious interpretation of effective
access to justice in the EU supranational legal order. It is in light of this proposition that
I have reconceptualised the general provisions of the legal basis of Article 81 TFEU,
namely the mutual recognition principle and the cross-border limitations, arguing in
favour of an extensive interpretation of the said provisions. Such extensive
understanding would also conform to the principles of subsidiarity and proportionality,
demanding a careful reconsideration of interests involved and potential risks of EU
legislative activity. This is so because the EU could coordinate Member States’ efforts
to this end, guaranteeing a coherent and systematic approach and EU-wide effectiveness
in equal terms.
127 See: W Kennett, Enforcement of Judgments in Europe (OUP 2000) 6; A M Rouchaud, ‘Le
renforcement de la coopération judiciaire’ in Université Jean Moulin, Faculté de Droit (eds), Les effets
des jugements nationaux dans les autres Etats membres de l’Union européenne (Bruylant 2001) 23. 128 See UK Government, ‘Commentary on the Constitutional Treaty, Part 3 the policies and functioning of the EU’ (2005) 168
http://webarchive.nationalarchives.gov.uk/20050606200944/http://www.fco.gov.uk/Files/kfile/commenta
ry_Part2_Part3.pdf accessed 18 February 2013. 129 See also: Storme (n 10) 91; Storskrubb (n 9) 45; M Freudenthal, ‘The Future of European Civil
Procedure’ (2003) 7(5) EJCL 10 http://www.ejcl.org/75/art75-6.html accessed 24 March 2013.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
219
7 Concluding Remarks
In this thesis, I focused on the possibilities for a coherent approach to EU civil
procedure law. I identified the potential for greater coherence in the use of the
fundamental right to effective access to justice as a tool for EU intervention in national
procedural regimes. This proposal can be realised via recourse to the legal basis of
Article 81(2)(e) TFEU explicitly providing for the approximation of national laws and
regulations for the promotion of effective access to justice. Therefore, I put forward a
link between Article 81(2)(e) TFEU and Article 47 CFREU, promoting a harmonious
interpretation of effective access to justice in the EU supranational legal order, through
a genuine reconceptualisation of the general provisions of Article 81 TFEU and of the
overall policy area of civil justice cooperation. From this point of view, civil procedural
law constitutes the means for the introduction and incorporation of fundamental notions
of justice in the supranational legal order.1
In order to examine my main thesis, I broke down the analysis in six chapters as
follows:
7.1 Background and overall argument
In the introductory chapter, I broadly examined the fundamental functions of
civil procedure rules. I suggested civil justice systems fulfil a dual role. On the one
hand, they facilitate the resolution of civil law disputes, focusing on the fairness and
efficiency of the proceedings as distinct from the outcome of the adjudication.2 On the
other hand, they facilitate the enforcement of subjective rights and through that of the
relevant national policy, laying emphasis on the rule of law, giving litigants what is
1 H E Hartnell, ‘EUstitia: Institutionalizing Justice in the European Union’ (2002) 23 Nw.J.Int’l L. & Bus.
92. 2 H Genn, Judging Civil Justice (The Hamlyn Lectures 2008, CUP 2010). On the function of dispute
resolution as distinct from the litigation outcome, see also: L B Solum, ‘Procedural Justice’ (2004-2005)
78 S.Cal.L.Rev.181, 183; S L Blader and T R Tyler, ‘A four-Component Model of Procedural Justice:
Defining the Meaning of a “Fair” process’ (2003) 29 Pers Soc Psychol Bull 747
http://psp.sagepub.com/content/29/6/747 accessed 08 March 2013.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
220
rightfully theirs.3 Van Gend en Loos established the decentralised system of private
enforcement and dispute resolution of claims based on EU law rights and obligations
before national courts.4 The latter, acting as European courts of general competence, set
the procedures and remedies for the adjudication of EU law related claims.5
Nevertheless, EU intervention into national procedural regimes may be deemed
necessary to ensure that national procedures come with sufficient guarantees for the
promotion of both fundamental goals of civil justice, namely dispute resolution and law
enforcement, in order to protect litigants’ interests on both sides of the EU law based
dispute.6 This essentially calls for adequate and effective remedial rules, as well as for
efficient and fair proceedings before national courts.
Having said that, the EU has intervened so far in national procedural systems in
a rather fragmented and incoherent way, lacking systematic planning and clearly set
objectives.7 This is exhibited in the multiplicity of modes of intervention, namely either
via CJEU ad hoc rules of procedure,8 sector specific, secondary legislative instruments
on core procedural themes,9 or via horizontal autonomous EU mechanisms of civil
procedure.10
I thus argued that Article 47 CFREU, on the right to an effective remedy
and a fair trial, should constitute the guiding principle for the interpretation of the
potential legal basis for civil justice harmonisation and the subsequent development of
3 Case C-294/83 Parti écologiste "Les Verts" v European Parliament [1988] ECR 1339, para 23. 4 Case 26-62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland
Revenue Administration [1963] ECR 1, para 12. 5 See inter alia: C N Kakouris, ‘Do the Member States possess Judicial Procedural Autonomy?’ (1997)
34 CML Rev. 1389; J S Delicostopoulos, ‘Towards European Procedural Primacy in National Legal
Systems’ (2003) 9(5) ELJ 599-613; W van Gerven, ‘Of Rights, Remedies and Procedures’ (2000) 37
CML Rev. 501. 6 On the desirability and feasibility of such EU intervention at the political level see above, ‘1
Civil procedure law in the EU: unravelling the policy considerations’ 73. 7 See to that effect: M Tulibacka, ‘Europeanisation of Civil Procedures: In Search of a Coherent
Approach’ (2009) 46 CML Rev. 1553-1565; E Storskrubb, Civil Procedure and EU law. A Policy Area
Uncovered (OUP 2008) 301-311. 8 For a detailed assessment of this mode of civil procedure harmonisation in the EU see above, ‘4 Civil
procedure law in the EU: the role of the CJEU case law’ 98. 9 See for instance, Directive 2004/48/EC on the enforcement of Intellectual Property Rights [2004] OJ L
195/16. See also above, ‘5.2 Sectoral EU civil procedure rules: the example of IPRED’ 135. 10 See for instance: Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11
July 2007 establishing a European Small Claims Procedure (2007) OJ L199/1. See also above, ‘5.3
Horizontal EU civil procedure rules: the example of the European Small Claims Procedure’ 150.
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relevant EU legislation on the private enforcement and dispute resolution of claims
based on EU law rights and obligations.
Article 47 CFREU, which constitutes primary EU law since the entry into force
of the Lisbon Treaty, has codified the EU right of access to justice, incorporating CJEU
case law on the principle of effective judicial protection, which draws inspiration from
ECHR Articles 6 and 13 and the relevant Strasbourg case law.11
Unlike initial, limited
conceptualisations of access to justice either as a right of access to courts, to due
process, or to judicial redress,12
Article 47 CFREU encapsulates guarantees of
reasonable length of proceedings, fair hearing, and judicial impartiality and
independence for the enforcement and dispute resolution of claims stemming from
‘rights and freedoms guaranteed by the law of the Union’.13
What is more, the Lisbon
Treaty has created two explicit legal bases for the promotion of the right of access to
justice in the EU, namely Articles 67 and 81(2)(e) TFEU on civil justice cooperation.14
This development offers ample possibilities to use Article 47 CFREU as a legitimising
tool or a higher standard, inducing greater coherence to civil procedure harmonisation
efforts in the EU.15
7.2 Of fundamental rights and obligations
In Chapter 2, I examined the scope of application and meaning of Article 47
CFREU on the right to an effective remedy and a fair trial, investigating whether and
how, if at all, it could be used as a guiding principle for the future development of civil
procedure law in the EU. According to the traditional defensive view, human rights are
11 See above, ‘2 The Right of Access to Justice in the EU: In Search of a New Role’ 39. 12 On the evolution of the right of access to justice see: M Cappelletti and B Garth (eds), Access to Justice
and the Welfare State (EUI 1981). 13 Article 47(1) CFREU; Article 6 TEU. 14 See also, M E Méndez-Pinedo, ‘Access to Justice as Hope in the Dark: in Search for a New Concept in
European Law’ (2011) 1(19) IJHSS 9. 15 See above, ‘6 The Horizontal Approach to EU Civil Procedure Law Reconceptualised: Achieving
Greater Coherence’ 184.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
222
limits to State intervention into individuals’ sphere of freedom.16
Therefore, human
rights vest individuals with justiciable claims that can be invoked before national courts
in case of breach by the State.17
In the EU context, this view prevailed during the initial
years of the evolution of an EU fundamental rights policy. As a result, Member States
insisted on the introduction of EU law fundamental rights, as these would essentially
limit integration efforts, restricting, rather than expanding, EU competences in the
various sectors of activity.18
However, after the enactment of the Lisbon Treaty, and the subsequent binding
force of the European Charter,19
Article 51 CFREU has imposed on EU institutions the
obligation not only to respect the Charter of Fundamental Rights, limiting their
regulatory activity appropriately, but also and most importantly, to promote the
application of these rights too. The latter obligation has arguably introduced an
alternative, proactive view on the role of EU fundamental rights, aimed at remedying
institutional deficiencies, which inhibit the full exercise of these rights.20
In this light, I
suggested that the right of access to justice under Article 47 CFREU calls for concrete
EU legislative measures guaranteeing effective, fair, and efficient access to in-court
adjudication for rights and freedoms under EU law. Such a proactive stance is both
16 On the traditional defensive view on the role of human rights see inter alia: S Fredman, Human Rights
Transformed: Positive Rights and Positive Duties (OUP 2008); O De Schutter, ‘The Implementation of
the EU Charter of Fundamental Rights through the Open Method of Coordination’ (Jean Monnet
Working Paper 07/04)
http://centers.law.nyu.edu/jeanmonnet/archive/papers/04/040701.pdf accessed 31 January 2013. 17 See: S Fredman, ‘Transformation or Dilution: Fundamental Rights in the EU Social Space’ (2006)
12(1) ELJ 41, 48. 18 See inter alia, G de Búrca, ‘The Evolution of EU Human Rights Law’ in P Craig and G de Búrca (eds),
The Evolution of EU Law (OUP 2011). 19 Article 6 TEU. 20 See to that effect: P Eeckhout, ‘The EU Charter of Fundamental Rights and the Federal Question’
(2002) 39 CML Rev. 945-994; De Schutter (n 16) 19-20; G De Búrca, ‘Fundamental Rights and
Citizenship’ in B de Witte (ed), Ten Reflections on the Constitutional Treaty for Europe (EUI Robert
Schumann Centre 2003) 21; P Alston and J H H Weiler, ‘An “Ever Closer Union” in Need of a Human
Rights Policy: The European Union and Human Rights’ in P Alston (ed), The EU and Human Rights
(OUP 1999) 3; M P Maduro, ‘The Double Constitutional Life of the Charter of Fundamental Rights of the European Union’ in T K Hervey and J Kenner (eds), Economic and Social Rights under the EU Charter
of Fundamental Rights – A Legal Perspective (Hart Publishing 2003) 289; P Carozza, ‘The Member
States’ in S Peers and A Ward (eds), The European Union Charter of Fundamental Rights (Hart
Publishing 2004) 49. See however, A von Bogdandy, ‘The European Union as a Human Rights
Organization? Human Rights at the Core of the European Union’ (2000) 37 CML Rev. 1333.
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desirable and feasible, due to the existence of express EU legal competence to ensure
effective access to justice through the approximation of Member States’ civil justice
laws and regulations in Article 81(2)(e) TFEU.21
In other words, Article 47 CFREU should influence the interpretation and nature
of developments in EU civil procedure law, albeit in a more subtle way than
establishing or modifying powers. EU institutions could invoke the fundamental right of
access to justice as a legitimising argument or as a higher standard, guiding efforts to
intervene into Member States’ civil procedural regimes.22
To this end, the wording and
standard of protection of Article 47 CFREU, pursuant to judicial interpretation in the
context of the traditional view of individual and retrospective judicial enforcement
against State violations, can play an instructive role in two contexts. Firstly, it offers
specific procedural guarantees for the effective EU law enforcement and dispute
resolution that EU institutions will have to consider when harmonising national civil
procedural regimes. Secondly, it provides EU institutions with general guiding criteria
for the limitation of these procedural guarantees by legislative instruments, where this is
justifiable, legitimate, and proportionate, thus striking a balance between access to
courts, procedural fairness, and efficiency of proceedings. This argument has been
instrumental for my investigation as to the appropriate legal basis for civil procedure
harmonisation in the EU. Therefore, it has informed the analysis in the subsequent
chapters four, five, and six, on the role of CJEU case law, sectoral intervention in
national procedural regimes, and judicial cooperation in civil matters respectively, in the
harmonisation effort.
Specifically, Article 47 CFREU imposes a duty on EU institutions to ensure that
individuals have the ability to apply to a court for a remedy, in instances of violations of
EU law rights and obligations. With this in mind, national authorities should reason
21 See above, ‘2.2 The constitutionalisation of the right of access to justice and repercussions for EU civil procedure law’ 41. 22 See: Storskrubb, Civil Procedure and EU Law: A Policy Area Uncovered (n 7) 90-91; G Sanna,
‘Article 47 of the EU Charter of Fundamental Rights and Its Impact on Judicial Cooperation in Civil and
Commercial Matters’ in G di Federico (ed), The EU Charter of Fundamental Rights: From Declaration
to Binding Instrument (Springer 2011) 173-174.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
224
their decisions to allow individuals to turn to national courts under the best possible
circumstances.23
In addition, the relief provided must be realistic and adequate for the
harm caused, often calling for the possibility to apply for a combination of remedies.
This duty is so pervasive that it can also affect the institutional organisation of courts
and tribunals, and their jurisdiction, in instances where they can lead to unnecessary,
costly, and time-consuming complications.24
In this light, EU institutions should also guarantee real and practical access to
courts for the adjudication of EU law rights and obligations, in accordance with certain
procedural rules on standing and legal interest,25
whilst also ensuring that final and
binding judgments are enforced within a reasonable time.26
This obligation does not
affect the possibility for mandatory out-of-court settlement prior to in-court
adjudication, provided there is a realistic possibility to pursue the matter further via the
judicial avenue, in terms of overall duration and costs of dispute resolution.27
To this
end, the provision of financial assistance may be necessary in certain cases, and though
legitimate and proportional restrictions are permissible, these cannot result in a blanket
denial of the right to legal aid for legal commercial persons.28
Additionally, all parties to
the dispute should be able to take knowledge of and comment on all evidence and
observations, having a reasonable opportunity to present their case and lines of
argumentation under equal procedural conditions, without one party being
systematically disadvantaged over the other party. This is often synonymous to oral
proceedings, in the presence of all parties and of the media or public following the
23 Case 222/86 Union nationale des entraîneurs et cadres techniques professionnels du football (Unectef)
v Georges Heylens and others [1987] ECR 4097. 24 Case C-268/06 Impact v Minister for Agriculture and Food [2008] ECR I-2483. 25 Joined cases C-87/90, C-88/90 and C-89/90 A. Verholen and others v Sociale Verzekeringsbank
Amsterdam [1991] ECR I-3757. 26 In the context of the ECHR case law, see: Burdov v. Russia App no 59498/00 (ECtHR, 7 May 2002). 27 Joined cases C-317/08, C-318/08, C-319/08 and C-320/08 Rosalba Alassini v Telecom Italia SpA (C-
317/08), Filomena Califano v Wind SpA (C-318/08), Lucia Anna Giorgia Iacono v Telecom Italia SpA
(C-319/08) and Multiservice Srl v Telecom Italia SpA (C-320/08) [2010] ECR I-02213. 28 Case C-279/09 DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v Bundesrepublik
Deutschland [2010] ECR I-13849.
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case.29
Fair proceedings should also last for a reasonable amount of time only;
reasonableness will be based on the complexity of the case, the applicants’ and judicial
authorities’ conduct, and the importance of the case for the applicant. Finally, such fair
and timely proceedings should take place before independent and impartial tribunals
established by law, being permanent, having binding jurisdiction, and in principle inter
partes procedures, and applying rules of law in an unprejudiced and unbiased way,
subjectively and objectively construed.30
7.3 Desirability and Feasibility
In Chapter 3 of the thesis, I focused on the desirability and feasibility of civil
procedure harmonisation for the promotion of the right to effective access to justice in
the EU. Using traditional justifications for substantive private law harmonisation as a
starting point, I found that these justifications could yield some convincing results in the
area of civil procedure law too.31
Specifically, intervention in national procedural
regimes could promote a level playing field for dispute resolution and law enforcement
in the EU, offering economic operators equivalent access to justice, putting them on
equal footing for the adjudication of Internal Market related rights and obligations.32
The more effective, efficient, and fair these common procedural rules are, the more
commercial operators will be incentivised to engage in economic activity in the Internal
Market, safe in the knowledge that the enforcement of their commercial entitlements
29 In the context of the ECHR case law, see: Fredin v. Sweden (no 2) App no 18928/91 (ECtHR, 23
February 1994). 30 In the context of the ECHR case law, see: Piersack v. Belgium App no 8692/79 (ECtHR, 1 October
1982). 31 On similar investigations by other scholars see, inter alia: J Engström, The Europeanisation of
Remedies and Procedures through Judge-made Law: Can a Trojan Horse achieve Effectiveness?
Experiences of the Swedish Judiciary (PhD Thesis, European University Institute 2009); M Dougan, National Remedies before the Court of Justice. Issues of Harmonisation and Differentiation (Hart
Publishing 2004); L Visscher, ‘A Law and Economics View on Harmonisation of Procedural law’ in X E
Kramer and C H van Rhee (eds), Civil Litigation in a Globalising World (T.M.C. ASSER PRESS 2012). 32 See, Commission, ‘Proposal for a Regulation of the European Parliament and of the Council
establishing a European Small Claims Procedure’ COM (2005) 87 final.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
226
will not be a ‘mission impossible’.33
Such increased economic activity can also be
envisaged due to the ensuing limitation of information costs for the assessment of the
adjudication risks when considering expanding commercial activity to another State in
the Internal Market.34
Finally, approximation of national procedural rules could curtail
incentives for the abuse of forum shopping and a potential race to the bottom. These
tactics could eventually compromise the effective enforcement of EU law rights and
obligations via recourse to, for instance, prohibitively expensive judicial systems, which
lack an impartial and independent judiciary, thereby unreasonably prolonging
adjudication.35
These efficiencies, however, should not be overemphasised. The promotion of a
level playing field in the Internal Market can only indirectly be achieved through the
harmonisation of civil proceedings facilitating effective access to justice. It is mainly
through the substantive EU legislation that the proper functioning and the elimination of
distortions of competition in the Internal Market can realistically be promoted. In
addition, economic efficiencies from civil procedure harmonisation due to increased
legal certainty and limited information costs for the expansion of commercial activity
should be weighed against implementation and adaptation costs as well as costs from
the limitation of procedural options and learning effects. Finally, although abusive
forum shopping constitutes a real risk in civil procedure law, deteriorating litigants’
access to justice for the dispute resolution and enforcement of EU law based claims, the
same cannot be said with regard to the likelihood of a race to the bottom. Such a
33 For preliminary empirical evidence on the correlation between effective civil procedure rules and
economic efficiencies, see inter alia: The International Bank for Reconstruction and Development/The
World Bank, Doing Business 2011: Making A Difference for Entrepreneurs (The World Bank and the
International Finance Corporation 2010)
http://www.doingbusiness.org/~/media/fpdkm/doing%20business/documents/annual-
reports/english/db11-fullreport.pdf accessed 03 March 2013; K H Bae and V Goyal, ‘Creditor Rights,
Enforcement, and Bank Loans’ (2009) 64(2) The Journal of Finance 823. 34 See: L E Ribstein and B H Kobayashi, ‘An Economic Analysis of Uniform States Laws’ (1996) 25(1)
J. Legal Stud.138-140. 35 See, inter alia: A S Bell, Forum Shopping and Venue in Transnational Litigation (OUP 2003) 25; P H
Lindblom, ‘Harmony of the legal spheres: A Swedish view on the construction of a unified European
procedural law’ (1997) E.R.P.L. 23-24.
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227
scenario would result in the degradation of the entire national procedural system,
eventually inflicting additional costs, rather than efficiencies.36
Therefore, I argued that the EU needs to weigh the policy efficiencies associated
with the harmonisation of civil procedure law against the various challenges to the
further promotion of the harmonisation project in a systematic fashion. These
challenges stem from the very nature of civil procedure law and its close relationship
with Member States’ divergent legal identities and traditions, which resist the adoption
of harmonisation measures that do not conform to their long established ideas on court
adjudication.37
Besides, harmonisation efforts could diminish procedural diversity
across the Member States, reducing the various jurisdictions’ incentive to innovate and
experiment for the provision of better and more competitive procedural regimes.38
Finally, harmonised procedural rules may tilt the balance in favour of certain pressure
groups’ interests due to increased lobbying possibilities at a centralised level.39
Without nullifying the importance of these parameters for the future
development of harmonised civil procedure rules, I tried to show their limitations and
realistic dimensions. Specifically, national procedural rules on trial administration and
general court infrastructure can easily be harmonised without national procedural
regimes losing efficiency or effectiveness. Additionally, harmonisation efforts contrary
to Member States’ fundamental procedural choices could still be envisaged in light of
36 For a detailed assessment of the efficiencies linked to civil procedure harmonisation see above, ‘3.2.4 Assessment’ 81. 37 M Taruffo, ‘Harmonisation in a Global Context: The ALI/UNIDROIT Principles’ in X E Kramer and
CH van Rhee (eds), Civil Litigation in a Globalising World (T. M. C. Asser Press 2012) 209. 37 See inter alia: D Kerameus, ‘Procedural Harmonisation in Europe’ (1995) 43(3) Am.J.Comp.L. 404-
405. In the context of contract law harmonisation: H Collins, ‘European Private Law and the Cultural
Diversity’ (1995) 3 E.R.P.L. 364; S Vogenauer, ‘‘The Spectre of a European Contract law’ in S
Vogenauer and S Weatherill (eds), The harmonisation of European contract law: Implications for
European Private Laws, Business and Legal Practice (Hart Publishing 2006) 26; P Legrand, ‘On the
Unbearable Localness of Law: Academic Fallacies and Unseasonable Observations’ (2002) 1 E.R.P.L.
63. 38 W Kerber, ‘Inter-jurisdictional Competition within the European Union’ (2000) Fordham Int’l L.J. 217, 221, 249; C Barnard and S Deakin, ‘Market Access and Regulatory Competition’ in C Barnard and J
Scott (eds), The Law of the Single European Market (Hart Publishing 2002); S Goldstein, ‘On comparing
and unifying civil procedural systems’ in R Cotterrell (ed), Process and Substance (Butterworths 1995)
43. 39 See, A Geiger, ‘Lobbyists — the Devil’s Advocates?’ (2003) 24(11) ECLR 559.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
228
the right of access to justice and the subsidence of the civil/common law dichotomy.
Furthermore, individual consumers’ and SMEs’ realistic potentials to take advantage of
regulatory competition should not be overestimated, considering their limited
information and choice capacities. Otherwise, equality of arms for the resolution of
disputes and the enforcement of EU law rights and obligations could be seriously
undermined. Finally, increased lobbying possibilities at the centralised level could
prove beneficial for the promotion of the ‘losing’ pressure groups’ interests for effective
access to justice.40
7.4 On institutional restrictions
In the 4th
Chapter, I focused on the CJEU case law on national procedural
autonomy and the principles of equivalence and effectiveness, investigating whether
this initial attempt to create EU civil procedure rules has succeeded in promoting
effective access to justice in the EU.41
Looking at landmark case law on the principle of
equivalence, I found that the Court has only scarcely used this principle as a review tool
of national procedural regimes. This principle requires that national procedural rules for
the enforcement of EU law rights and obligations are not less favourable than the
procedural rules applicable to similar actions of domestic nature. However, the Court
has only rarely been able to identify domestic actions that are similar to the EU law
based ones, in terms of the purpose, cause of action, and basic procedural elements.42
As
a result, the principle of equivalence, where applied, has not actually led to the creation
of procedural rules at a centralised EU level. It has only promoted the cohesion of the
40 For a detailed reconsideration of the feasibility parameters for the harmonisation of civil procedure law
see above, ‘3.3.4 Countervailing Considerations’ 88. 41 Case 33-76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das Saarland
[1976] ECR 1989. On the existence of national procedural autonomy or competence see, inter alia: J S
Delicostopoulos, ‘Towards European Procedural Primacy in National Legal Systems’ (2003) 9(5) ELJ 599-613; N Kakouris, 'Do the Member States possess Judicial Procedural "Autonomy"?' (1997) 34 CML
Rev. 1389-1412. 42 Case C-326/96 B.S. Levez v T.H. Jennings (Harlow Pools) Ltd [1998] ECR I-7835, para 44; case C-
78/98 Shirley Preston and Others v Wolverhampton Healthcare NHS Trust and Others and Dorothy
Fletcher and Others v Midland Bank plc [2000] ECR I-3201, para 61.
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national procedural systems, asking equivalent remedies and procedures regardless of
whether a claim is EU law or domestic law originated. More importantly, the
importance of the principle of equivalence is all the more diminishing in a highly
integrated supranational legal order, rendering the distinction between EU and domestic
law based actions hardly feasible.43
Unlike the principle of equivalence, there is extensive CJEU case law on the
principle of effectiveness, requiring that national procedural rules do not render EU law
enforcement practically impossible or excessively difficult. As such, this principle is
more pervasive, calling for modifications in national judicial systems for the effective
enforcement of EU law rights and obligations, nonetheless leaving procedural rules for
internal cases intact. Based on this principle, CJEU has reviewed national procedural
rules on limitation periods for the institution of EU law based claims before national
courts, including retrospective EU law related claims.44
In doing so, it has either asked
national courts to set those procedural rules aside, to amend them, or to apply new ones.
The Court has been even more daring in the case of compensatory relief for state
liability for non-, or wrong, implementation of EU Directives, or as an essential
corollary to direct effect, securing adequate relief for breach of EU rights by state
(executive, legislature, judiciary),45
or non-state organs. Despite introducing a remedy
that would not otherwise be available in national procedural systems, CJEU has only
broadly sketched the constitutive elements for the availability of compensatory relief,
leaving executive conditions on the personal and substantive scope, the form, and the
extent of the said relief to Member States’ judicial systems. Along the same lines, it
introduced interim remedial relief in national procedural systems for the suspension of
43 See inter alia: C M G Himsworth, ‘Things Fall Apart: the Harmonisation of Community Judicial
Procedural Protection Revisited’ (1997) 22(4) ELR 291; M Bobek, ‘Why There is no principle of
“procedural autonomy” of the member states’ in H W Micklitz and B de Witte (eds), The European Court
of Justice and the Autonomy of the Member States (Intersentia 2012) 305. 44 For example, see: case C-208/90 Theresa Emmott v Minister for Social Welfare and Attorney General [1991] ECR I-4269; case C-338/91 Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor
Detailhandel, Ambachten en Huisvrouwen [1993] ECR I-5475. 45 See: joined cases C-6/90 and C-9/90 Andrea Francovich and Danila Bonifaci and others v Italian
Republic [1991] ECR I-5357; case C-224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-
10239.
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enforcement of secondary invalid EU provisions, as well as of national law in breach of
Union law.46
In doing so, it only established the basic constitutive elements for the
availability of interim relief in cases of invalid secondary EU provisions, leaving both
constituent and executive elements of interim relief for national law breaching EU law
entirely to Member States’ internal procedural choices.47
Finally, the CJEU has reviewed national evidentiary rules and presumptions,
asking national courts to put them aside where it would be realistically impossible for a
litigant to produce or rebut such evidence, availing national remedies for the
enforcement of his/her EU law rights and obligations.48
However, the necessity for
effective enforcement of EU law has not led the CJEU to impose on national judges a
general duty to raise points of EU law ex officio. Such a duty can only be envisaged
where there has not been an adequate opportunity for a litigant to bring forward an EU
law related claim before a court of law, taking into account the rights of defence and the
procedural efficiency of judicial systems.49
The CJEU has placed the effectiveness of the EU legal order at the top of its
hierarchy when it comes to Member States’ domestic procedural provisions in EU law
related cases before national courts. That being said, the criterion against which the
CJEU has assessed the necessity for intervention into Member States’ national
procedural regimes, asking them to either set aside certain rules, modify them, or, less
often, come up with new remedies, is the fundamental right of access to justice. In other
words, CJEU has intervened to guarantee the application of the right of access to justice
during the private enforcement of EU law rights. The CJEU case law has shown in
parallel the inherent limitations of the access to justice yardstick when employed by the
46 See for instance: case C-213/89 The Queen v Secretary of State for Transport, ex parte: Factortame Ltd
and others [1990] ECR I-2433; joined cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen AG
v Hauptzollamt Itzehoe and Zuckerfabrik Soest GmbH v Hauptzollamt Paderborn [1991] ECR I-00415. 47 On the distinction between constitutive and executive remedial elements, see: Van Gerven, ‘Of Rights,
Remedies and Procedures’ (n 5) 505. 48 See for example: case 199/82 Amministrazione delle Finanze dello Stato v SpA San Giorgio [1983] ECR 3595; case C-222/84 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary
[1986] ECR 1651. 49 See: case C-312/93 Peterbroeck, Van Campenhout & Cie SCS v Belgian State [1995] ECR I-4599;
joined cases C-430/93 and C-431/93 Jeroen van Schijndel and Johannes Nicolaas Cornelis van Veen v
Stichting Pensioenfonds voor Fysiotherapeuten [1995] ECR I-4705.
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Court.50
The essentially factual approach of the Court, as well as the incapacity to
consider relevant remedial and procedural rules in 28 Member States inhibit the Court
from establishing detailed rules of EU civil procedure. In other words, the principle of
equivalence and the recourse to national procedural regimes were used to fill in the
CJEU case law gaps. These gaps derive from the inherently limited position of the
CJEU to consider domestic legal regimes and fundamental choices in order to guarantee
the right of access to justice in the EU, an integral element of which is the effective
enforcement of EU law.
Realistically seen, the CJEU case law has contributed to the cooperation
between the Court and Member States’ national courts: this has removed an
enforcement burden from the EU Institutions, while also increasing EU citizens’ and
national courts’ understanding of the EU legal order.51
Nevertheless, CJEU has
developed its case law in an ad hoc fashion, being less normatively (procedurally)
coherent and comprehensive compared to a systematic legislative scheme of
intervention into Member States’ national remedial and procedural regimes.52
As a
result, CJEU has systematically asked the EU legislature to take up its role in
harmonising national procedural systems,53
embracing and further developing its
intervention yardstick, namely effective access to justice. I have thus argued for the use
of Article 81(2)(e) TFEU as the genuine competence basis for the harmonisation of civil
procedure law in accordance with the procedural guarantees for effective remedies and
fair trial in Article 47 CFREU.
50 See also, M Dougan, National Remedies Before the Court of Justice: Issues of Harmonisation and
Differentiation (Hart Publishing 2004) 391-395. 51 See, J Bridge, ‘Procedural Aspects of the Enforcement of European Community Law through the Legal
Systems of the Member States’ (1984) 1 ELR 28, 31. 52 For an investigation of the reasons behind CJEU’s reluctance to promote a stronger ‘Communitarian
approach to the problems of judicial procedure’ see: M Cappelletti and D Golay, ‘The Judicial Branch in
the Federal and Transnational Union: Its Impact on Integration’ in M Cappelletti, M Seccombe, and J Weiler (eds), Integration Through Law. Europe and the American Federal Experience. (Vol 1: Methods,
Tools and Institutions, Book 2: Political Organs, Integration Techniques, and Judicial Process, Walter de
Gryer 1986) 337-338. 53 See for instance, case 130/79 Express Dairy Foods Limited v Intervention Board for Agricultural
Produce [1980] ECR 1887.
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7.5 In search of constitutional legitimacy
In Chapter 5, I looked at some examples of legislative harmonisation of civil
procedure law in the EU. These examples came from both sectoral EU legislative
harmonisation of national measures, namely IPRED, as well as horizontal EU
mechanisms, i.e. ESCP. As with Chapter 4, my aim has been twofold; firstly, to
examine the actual type and extent of harmonisation of national procedural systems,
and, secondly, to identify whether these modes of harmonisation can, and indeed have
promoted effective access to justice whilst striking a balance between competing
interests.
To begin with, IPRED introduced EU rules on core procedural themes, such as
disclosure and preservation of evidence (Articles 6-7), provisional and precautionary
measures (Article 9), and legal costs reimbursement provisions (Article 14). Based on
Article 114 TFEU on the approximation of laws in the Internal Market, IPRED
provisions apply to both domestic and cross-border disputes for the enforcement of EU
or national IP rights. The initial impetus for such a limited scope of application of these
procedural provisions might have been political considerations of minimum intervention
in national procedural systems, as well as of gradual development of more general rules
on a trial and error basis.54
However, despite their sectoral scope, IPRED rules were
modelled on Member States’ general provisions on the same procedural themes, and as
a result, their impact has been felt much wider in national procedural systems.55
On the
one hand, regulating core procedural themes such as disclosure of evidence and
provisional measures anew for every area of EU activity may lead to convoluted
national regimes, inherently inconsistent and largely divergent depending on the
substantive matter. On the other hand, the balance between competing interests in those
54 See, G Wagner, ‘Harmonisation of Civil Procedure: Policy Perspectives’ in X E Kramer and C H van
Rhee (eds), Civil Litigation in a Globalising World (T.M.C. Asser Press 2012) 112. 55 See, Tulibacka ‘Europeanization of Civil Procedures: In search of a Coherent Approach’ (n 7) 1547.
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core procedural matters, namely the defendant’s, the claimant’s, and those of the good
administration of justice, does not change with the sector of EU activity.56
Bearing this in mind, both the Storme Report on the approximation of judiciary
law in the EU57
and the ALI/UNIDROIT principles of transnational civil procedure
law58
have tackled these issues in a generic, non-substantive law specific fashion.
IPRED provisions on evidentiary rules, provisional measures, and legal costs are
instrumental from an access to justice promotion perspective and as such need not be
harmonised at sectoral level. Such a sectoral approach overemphasises the law-
enforcement perspective, and is inherently limited for the promotion and balancing of
all competing interests in civil adjudication.59
This was mainly demonstrated in Article
2 IPRED and the introduction of minimum standards Member States could adapt in
their national legislation tilting unjustifiably the balance in favour of right holders only.
These minimum standards stem from the constitutional limitations of the sectoral
approach; trying to avoid the cross-border limitation of Article 81 TFEU on civil justice
cooperation, IPRED drafters used Article 114 TFEU as the legal basis for intervention
in national procedural regimes. However, procedural rules could only indirectly
promote the functioning of the Internal Market, eliminating distortions of competition.
As such, Article 114 TFEU offers EU legislature only a limited constitutional mandate
for civil procedure harmonisation, discernible in the absolute lack of provisions on the
possibilities to fund IP rights litigation.60
Bearing this in mind, I examined another mode of legislative intervention in
national procedural regimes, namely via horizontal autonomous EU procedural
mechanisms, such as the ESCP. This mechanism has introduced procedural rules aimed
at the facilitation of both the enforcement of EU law rights and obligations, as well as of
56 See above, ‘5.2.1 An instrument for harmonising core aspects of civil procedure?’ 138. 57 M Storme, Approximation of Judiciary Law in the European Union (Kluwer Academic Publishers
1994). 58 ALI/UNIDROIT ‘Principles of Transnational Civil Procedure Law’ (2004) 4 Unif. L. Rev. 758. 59 See inter alia, Wagner, ‘Harmonisation of Civil Procedure: Policy (n 54) 112. 60 See above, ‘5.2.2 Limitations of the IPRED’ 145.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
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effective dispute resolution, actively promoting access to justice in the EU.61
Specifically, it introduced standard forms for a swift and simplified institution and
running of court proceedings, also establishing a written procedure for the adjudication
of simple, low-value claims, combined with optional legal representation and limited
evidence-taking requirements. Along these lines, it has incorporated, inter alia,
provisions for oral hearing or expert evidence through extensive use of ICT
possibilities, where the complexity of the case so requires, catering for the interests of
the defence and the fairness of the proceedings, as well as of the good administration of
justice in procedural efficiency.62
However, ESCP applies only to cross-border small claims disputes constituting
an alternative mechanism litigants could opt for. This leads to a multiplicity of
procedures and convoluted civil justice systems, impairing prospective litigants’ and
national judges’ awareness of the mechanism,63
for the additional reason that the
mechanism is limited to cross-border disputes, which are of particularly low volume in
national legal orders in the first place.64
In addition, ESCP’s effectiveness for cross-
border disputes is restricted due to language barriers and subsequent translation costs,
albeit not applicable in case of low value domestic disputes for EU law matters. Such a
limited territorial scope does not conform to the wording of Article 47 CFREU
providing the right to an effective remedy for all rights and freedoms guaranteed under
Union law, regulating not only cross-border, but also domestic relations.65
Similarly,
ESCP has also introduced minimum procedural standards based on the principle of
mutual recognition enshrined in the legal basis of Article 81 TFEU and the broader area
of civil justice cooperation. However, these minimum standards are particularly
61 See inter alia, X E Kramer, ‘The European Small Claims Procedure: Striking the Balance between
Simplicity and Fairness in European Litigation’ (2008) 2 ZeuP 370-373. 62 See above, ‘5.3.1 Key features of the Small Claims Procedure in the Context of the Right of Access to
Justice’ 153. 63 See to that effect: ECC-Net, ‘European Small Claims Procedure Report’ (2012) http://ec.europa.eu/consumers/ecc/docs/small_claims_210992012_en.pdf accessed 13 December 2012. 64 See, B Hess, T Pfeiffer, and P Schlosser, ‘Report on the Application of the Regulation Brussels I in the
Member States’ (Study JLS/C4/2005/03) 16
http://ec.europa.eu/civiljustice/news/docs/study_application_brussels_1_en.pdf accessed 11 March 2013. 65 See above, ‘5.3.2.1 Cross-border-disputes limitation’ 157.
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problematic from a promotion of access to justice perspective, as they need to be
complemented by national procedural regimes; this will lead to considerable
divergences from one Member States to the other, rendering the comparison between
the EU mechanism and the domestic one a difficult and complicated task. This is shown
in ESCP provisions on the expansion of time limits for the various actions in the
litigation process in ‘exceptional circumstances’, the hardly elaborated bases for judicial
review, as well as in the unqualified delegation of the availability, form, and extent of
appeal proceedings to national procedural law.66
Despite evident efforts to strike a
balance between competing interests in small claims litigation, promoting both law
enforcement and dispute resolution considerations, the drafters of the ESCP have
arguably undermined its effectiveness due to the incongruously limited interpretation of
the legal basis of Article 81 TFEU.
Against this fragmented legislative background of civil procedure harmonisation
in the EU, the recent discussions on a coherent approach to collective redress might be
indicative of the better way forward. Although the initial approach to collective redress
was sector-specific, with separate proposals for competition and consumer law, the
latest Commission Public Consultation and the Parliament report on collective actions
for damages urge greater coherence and horizontality. This stems from the commonality
of stakes for the promotion of effective access to justice in the EU in competition,
consumer, environmental and yet more areas of EU activity, where the same business
practices can inflict small losses on a great amount of individuals or other businesses.
Where justifiable, such a horizontal approach could also accommodate sector-specific
instruments, for instance, for the quantification of damages in competition law
violations, or the broader relationship between public and private enforcement of
competition law.67
66 See above, ‘5.3.2.2 Minimum procedural standards’ 160. 67 See for instance: Commission, ‘Public Consultation: Towards a Coherent European Approach to
Collective Redress’ (Staff Working Document) SEC (2011) 173, 4-5; European Parliament Committee on
Legal Affairs, ‘Draft Report on Towards a Coherent Approach to Collective Redress’ 2011/2089(INI), 5.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
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Current discussions on collective redress constitute a valuable guiding tool for
future civil procedure rules in the EU for yet another reason; they demonstrate the need
to strike a clear balance between the competing interests in the core procedural
provisions for the promotion of effective access to justice in the EU. For instance, a
future EU instrument on collective redress should entail rules on the identification of
prospective collective claimants. This is important from an access to justice perspective
for a multitude of reasons; for the claimants’ fundamental freedom to decide whether
they wish to involve themselves in litigation, but also for the existence of a realistic
possibility to access courts in a manner that is not too complicated, or expensive, or
time-consuming. Equally, this issue is fundamental for the defendants’ access to justice
through increased possibilities for global peace. Accordingly, opt-in, opt-out solutions,
or a combination of both should be considered.68
Legal standing rules are also important from an access to justice perspective,
affecting matters such as the possibility to inform and represent effectively the members
of the class, to encourage meritorious claims, and to guarantee adequate financial
liquidity in case of defeat and of the ensuing necessity to reimburse the winning party’s
legal costs.69
Potential solutions include group actions, class actions, or test cases.
Finally, possibilities to finance the institution and continuation of proceedings, also
covering the defendants’ legal costs in case of defeat, are equally important from an
access to justice perspective, facilitating claimants’ access to courts and allowing for
meritorious claims that will not drag defendants to the courts. Against these basic
balancing premises, contingency fees, BTE and ATE insurance schemes and public
legal aid models can be envisaged.70
7.6 ‘A paradigm shift’
68 See above, ‘5.4.2.1 Identifying the claimants: to opt in or to opt out, or both?’ 171. 69 See above, ‘5.4.2.2 Legal Standing in collective disputes: Filtering mechanisms?’174. 70 See above, ‘5.4.2.3 Financing the EU collective redress mechanism’ 176.
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In Chapter 6, I looked at the legal basis for horizontal EU civil procedure rules
after the 2009 Lisbon Treaty, namely Article 81 TFEU. The predecessors of this
provision, namely Articles 220 EEC, K.1(6) EU, and 65 EC, have diachronically served
as the legal bases for procedural cooperation in civil matters, a key parameter of EU
integration. The Lisbon Treaty attributed an autonomous place to civil justice
cooperation in the broader Area of Freedom, Security, and Justice, which is aimed at
ensuring, inter alia, ‘effective access to justice’ even when this is not necessary for the
proper functioning of the Internal Market.71
However, Article 81 TFEU has also
maintained some of the inefficiencies of its predecessors, and mainly Article 65 EC. It
only covers cross-border disputes between parties not habitually residing in the same
Member State, whereas the UK, Irish, and Danish opt-outs from the Area of Visas,
Asylum, Immigration, and policies related to the free movement of persons were
maintained in the Lisbon Treaty too.72
Despite Article 81 TFEU related limitations, the EU legislature should not use
Article 114 TFEU on the approximation of laws in the Internal Market as the legal basis
for future EU civil procedure rules. On the one hand, Article 81 TFEU continues
constituting a lex specialis, where civil justice approximation measures are necessary
for the proper functioning of the Internal Market.73
On the other hand, Article 114
TFEU requires a direct link between the approximation measures and the functioning of
the Internal Market, which is missing in the area of civil procedure law harmonisation.
Civil procedure rules do not affect parties’ access to the Internal Market, but their
relationships in case of dispute. In addition, although they fulfil an enforcement of
substantive law function, they are not limited to Internal Market related substantive EU
legislation.74
71 See inter alia, G R de Groot and J J Kuipers, ‘The new provisions on Private International Law in the Treaty of Lisbon’ (2008) 1 MJ 109, 112. 72 See above, ‘6.2 Civil justice cooperation after the Lisbon Treaty: a new era?’ 185. 73 See inter alia, S Peers, EU Justice and Home Affairs Law (3rd edn, OUP 2011) 613. 74 See above, ‘6.3.1 Recasting the relationship between Articles 81 and 114 TFEU: harmonisation through
the backdoor?’ 196.
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I have argued that only Article 81 TFEU comes with the necessary constitutional
legitimacy for a coherent EU approach to civil justice harmonisation, capable of
actively promoting effective access to justice in the EU. This presupposes a
reconceptualisation of its general premises through a harmonious interpretation between
Articles 47 CFREU and 81(2)(e) TFEU. Accordingly, EU civil procedure rules for the
facilitation of effective access to justice should be discerned from the minimum
standard setting function of the principle of mutual recognition of judicial and extra-
judicial decisions in civil matters, presumably allowing for genuine and systematic civil
justice harmonisation measures.75
Along the same lines, the ‘cross-border implications’
condition should be interpreted more broadly, covering domestic and cross-border
disputes stricto sensu for rights and freedoms guaranteed under Union law. As a result,
future EU civil procedure rules will maintain their international character, being directly
linked to the functioning of the supranational legal order.76
At the end of the day, these
EU civil procedure rules could be used as a source of inspiration for the adaptation of
national procedural systems in non-EU law related disputes, as has been the case with
the Mediation Directive.77
Finally, this proposition conforms to the principles of subsidiarity and
proportionality. On the one hand, the responsibility to adopt civil procedure rules for
disputes in the field of EU law falls reasonably on the shoulders of EU institutions
(subsidiarity). On the other hand, horizontal, mandatory EU civil procedure rules in the
field of Union law are appropriate, necessary, and proportionate stricto sensu for the
promotion of effective access to justice in the EU due to their prospective substantive
and personal scope of application. Accordingly, soft law approaches for the
harmonisation of civil procedure law lack the necessary binding force that would allow
75 See to that effect: T Andersson, ‘Harmonisation and Mutual Recognition: How to handle Mutual
Distrust?’ in M Ardenas, B Hess, and B Oberhammer (eds), Enforcement Agency Practice in Europe
(BIICL 2005) 250. 76 See above, ‘6.3.2 Reconsidering ’ 199. See also: Commission, ‘Green Paper on a European Order for Payment Procedure and on Measures to simplify and speed up Small Claims Litigation’ COM (2002) 746
final, 14; B Hess, ‘Procedural Harmonisation in a European Context’ in X E Kramer and C H van Rhee
(eds), Civil Litigation in a Globalising World (T.M.C. Asser Press 2012) 171. 77 On the possibility for gradual harmonisation of civil procedure rules for non-EU related disputes, see:
M Storme, ‘Improving Access to Justice in the Europe’ (2010) Teka Kom. Praw. – OL PAN 207, 215.
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the establishment of enforcement systems of equitable performance levels. What is
more, a minimum harmonisation approach may lead to further fragmentation in national
procedural systems and the EU in general. Finally, the duplication and maintenance of
several procedural regimes, essentially promoting the same value, makes little sense,
complicating the situation, furthering inequalities and discrimination, and
compromising timely, at reasonable costs, and accurate application of EU law to
individual cases.78
Finally…
The European Union comes with unique constitutional legitimacy and political
structures that enable it to intervene in national civil justice systems with unprecedented
vigour and consistency. Nevertheless, the EU keeps sending out mixed signals
regarding its intentions and actual regulatory approach for the development of EU civil
procedure law.79
Therefore, in this thesis, I have analysed the specific EU approach to
civil procedure harmonisation that, in my opinion, can set civil justice cooperation free
from its schematic premises, offering potentials for effective and coherent solutions at a
centralised EU level. This is facilitated via the joint reading of Articles 81(2)(e) TFEU
and 47 CFREU, leading to an expansive understanding of the general conditions of the
policy area of judicial cooperation in civil matters.80
To conclude using the words of
Van der Grinten, ‘[h]owever difficult (in part) the issues may be, this does not mean that
we […] are excused from the task of finding the answers. Let us in this respect strive for
answers that contribute to more coherence, better law making and a better European
civil procedural law’.81
78 See above, ‘6.4 What is needed? The principles of subsidiarity and proportionality’ 208. See also: A A
S Zuckerman, ‘The principle of effective judicial protection in EU law’ (Remedies for Breach of EU Law
Revisited, King’s College London, June 2010) 2 http://ukael.org/past_events_24_3656132649.pdf
accessed 16 March 2013; Wagner, ‘Harmonisation of Civil Procedure: Policy Perspectives’ (n 59) 101. 79 Tulibacka ‘Europeanization of Civil Procedures: In search of a Coherent Approach’ (n 7) 1565. 80 See above, ‘6 The Horizontal Approach to EU Civil Procedure Law Reconceptualised: Achieving
Greater Coherence’ 184. 81 P M M van der Grinten, ‘Challenges for the Creation of a European Law of Civil Procedure’ (2007) 3
TCR 65-70 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1392006 accessed 18 October 2012.
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7.7 Outlook to the future
Comparative research constitutes the essential prerequisite for the coherent
approach promoted in this work. Originally, national procedural law reformers
undertook comparative research of mainly neighbouring civil procedure systems in
order to draft new or amend domestic civil procedure legislation and rules. Comparative
study is particularly promising in case of competing national procedural regimes
seeking to attract more litigation business. It reveals their strengths and weaknesses in
the supranational arena.82
As a result, comparative research of the various national
procedural systems in the supranational EU legal order is a sine qua non in a highly
globalised competitive judicial environment. It facilitates the identification and
objective appreciation of the challenges of creating EU civil procedure measures
promoting effective access to justice in the EU. To put it differently, it is of strategic
importance for the establishment of the need for regulation, only after EU reformers
have genuinely considered the sources and reasons for divergences in national
procedural systems, thus lending credibility to future EU rules and mechanisms.83
Such comparative activity needs to be complemented by empirical data focusing
on the various positive and negative duties deriving from the wording and judicial
interpretation of Article 47 CFREU and its ECHR counterparts, Articles 6 and 13.84
This will allow an even more insightful and complete understanding of the various
national procedural solutions, appreciating their impact on prospective EU citizens’
access to justice for the enforcement of EU law rights and obligations.
CEPEJ has paved the way, launching in 2002 a systematic study of the
functioning of European judicial systems, albeit not only in EU Member States,
82 C H Van Rhee, ‘Harmonisation of Civil Procedure: An Historical and Comparative Perspective’ in X E
Kramer and C H van Rhee (eds), Civil Litigation in a Globalising World (T.M.C. Asser Press 2012) 60. 83 W van Gerven, ‘A Common Law for Europe: The Future Meeting the Past?’ (2001) 4 E.R.P.L. 485, 494; J S Parker, ‘Comparative Civil Procedure and Transnational “Harmonisation”: A Law-and-
Economics Perspective’ (George Mason Law & Economics Research Paper No.09-03 2009) 1-3
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1325013 accessed 25 March 2013. 84 See above, ‘2.3 The fundamental procedural guarantees of the right of access to justice: the standard of
protection’ 50.
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collecting comparative data about key indicators of the rule of law and effectiveness of
access to justice in the Council of Europe Member States. These comprise statistical
data and information on, inter alia, court fees, taxes, and reimbursement in the various
Member States; legal aid and funding schemes; the duration of proceedings; the
execution of judgments; lawyers’ fees; court organisation and e-justice possibilities;
and, rules on the appointment of the judiciary.85
Along the same lines, but having a
much more limited scope, the European Commission has released an extensive
comparative empirical study on the transparency of costs in civil litigation in the 27
Member States.86
The cost of accessing justice is instrumental for the fundamental right
of effective access to justice as enshrined in Article 47 CFREU. Therefore, the study
focused on procedural themes such as reimbursement rules for legal costs, lawyers’
fees, court fees, and legal aid schemes. These are themes relating to two complementary
aspects of civil proceedings costs: the costs inflicted by litigants in order to access civil
proceedings (sources of legal costs); and, States’ actions with regard to civil
proceedings funding in order to facilitate such access to the judicial system (legal aid,
legal expenses insurance, funding by lawyers and third party litigation funders).
85 CEPEJ, European Judicial Systems: Efficiency and Quality of Justice (Council of Europe Publishing
2012). 86 J Albert et al, ‘Study on the Transparency of Costs of Civil Judicial Proceedings in the European
Union: Final Report’ (2007)
http://ec.europa.eu/civiljustice/publications/docs/costs_civil_proceedings/cost_proceedings_final_report_
en.pdf accessed 12 March 2013.
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
242
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List of Cases
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Case no 1-58 Friedrich Stork & Cie v High Authority of the European Coal and Steel
Community [1959] ECR 00017
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
270
Joined cases 36, 37, 38-59, and 40-59 Präsident Ruhrkolen-Verkaufsgesellschaft mbH, Geitling
Ruhrkohlen-Verkaufsgesellschaft mbH, Mausegatt Ruhrkohlen-Verkaufsgesellschaft mbH
and I. Nold KG v High Authority of the European Coal and Steel Community [1960] ECR
00423
Case 26-62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v
Netherlands Inland Revenue Administration [1963] ECR 00001
Case 40-64 Marcello Sgarlata and others v Commission of the EEC [1965] ECR 00215
Case 61-65 G. Vaassen-Göbbels (a widow) v Management of the Beambtenfonds voor het
Mijnbedrijf [1966] ECR 00261
Case 28-67 Firma Molkerei-Zentrale Westfalen/Lippe GmbH v Hauptzollamt Paderborn [1968]
ECR 00143
Case 13-68 SpA Salgoil v Italian Ministry of Foreign Trade, Rome [1968] ECR 00453
Case 29-69 Erich Stauder v City of Ulm - Sozialamt [1969] ECR 00419
Case 9-70 Franz Grad v Finanzamt Traunstein [1970] ECR 00825
Case 11-70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide
und Futtermittel [1970] ECR 01125
Case 39-70 Norddeutsches Vieh- und Fleischkontor GmbH v Hauptzollamt Hamburg-St. Annen
[1971] ECR 00049
Case 5-71 Aktien-Zuckerfabrik Schöppenstedt v Council of the European Communities [1971]
ECR 00975
Case 93-71 Orsolina Leonesio v Ministero dell'agricoltura e foreste [1972] ECR 00287
Case 39-72 Commission of the European Communities v Italian Republic [1973] ECR 00101
Case 4-73 J. Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European
Communities [1974] ECR 00491
Case 2-74 Jean Reyners v Belgian State [1974] ECR 00631
Case 26-74 Société Roquette frères v Commission of the European Communities [1976] ECR
00677
Case 41-74 Yvonne van Duyn v Home Office [1974] ECR 01337
Case 36-75 Roland Rutili v Ministre de l'intérieur [1975] ECR 01219
Case 43-75 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1976]
ECR 00455
Case 60-75 Carmine Antonio Russo v Azienda di Stato per gli interventi sul mercato agricolo
(AIMA) [1976] ECR 00045
Zampia G Vernadaki, UCL Laws
271
Case 33-76 Rewe-Zentralfinanz eG and Rewe-Zentral AG v Landwirtschaftskammer für das
Saarland [1976] ECR 01989
Case 45-76 Comet BV v Produktschap voor Siergewassen [1976] ECR 02043
Case 50-76 Amsterdam Bulb BV v Produktschap voor Siergewassen [1977] ECR 00137
Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 00629
Case 149/77 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena
[1978] ECR 01365
Case 148/78 Criminal proceedings against Tullio Ratti [1979] ECR 01629
Joined cases 209 to 215 and 218/78 Heintz van Landewyck SARL and others v Commission of
the European Communities [1980] ECR 03125
Case 265/78 H. Ferwerda BV v Produktschap voor Vee en Vlees [1980] ECR 00617
Case 44/79 Liselotte Hauer v Land Rheinland-Pfalz [1979] ECR 03727
Joined cases 66, 127 and 128/79 Amministrazione delle Finanze v Srl Meridionale Industria
Salumi, Fratelli Vasanelli and Fratelli Ultrocchi [1980] ECR 01237
Case 68/79 Hans Just I/S v Danish Ministry for Fiscal Affairs [1980] ECR 00501
Case 125/79 Bernard Denilauler v SNC Couchet Frères [1980] ECR 01553
Case 130/79 Express Dairy Foods Limited v Intervention Board for Agricultural Produce
[1980] ECR 01887
Joined cases 100 to 103/80 SA Musique Diffusion française and others v Commission of the
European Communities [1983] ECR 01825
Case 158/80 Rewe-Handelsgesellschaft Nord mbH and Rewe-Markt Steffen v Hauptzollamt Kiel
[1981] ECR 01805
Case 54/81 Firma Wilhelm Fromme v Bundesanstalt für landwirtschaftliche Marktordnung
[1982] ECR 01449
Case 102/81 Nordsee Deutsche Hochseefischerei GmbH v Reederei Mond Hochseefischerei
Nordstern AG & Co. KG and Reederei Friedrich Busse Hochseefischerei Nordstern AG
& Co. KG [1982] ECR 01095
Case 199/82 Amministrazione delle Finanze dello Stato v SpA San Giorgio [1983] ECR 03595
Joined cases 205 to 215/82 Deutsche Milchkontor GmbH and others v Federal Republic of
Germany [1983] ECR 02633
Case 14/83 Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen [1984] ECR
1891
Case 294/83 Parti écologiste "Les Verts" v European Parliament [1986] ECR 01339
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
272
Case 179/84 Piercarlo Bozzetti v Invernizzi SpA and Ministero del Tesoro [1985] ECR 2301
02301
Case 222/84 Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary [1986]
ECR 01651
Case 222/86 Union nationale des entraîneurs et cadres techniques professionnels du football
(Unectef) v Georges Heylens and others [1987] ECR 04097
Case C-142/87 Kingdom of Belgium v Commission of the European Communities [1990] ECR I-
00959
Case 247/87 Star Fruit Company SA v Commission of the European Communities [1989] ECR
00291
Case 5/88 Hubert Wachauf v Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 02609
Joined cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen AG v Hauptzollamt
Itzehoe and Zuckerfabrik Soest GmbH v Hauptzollamt Paderborn 1991] ECR I-00415
Case C-213/89 The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and
others [1990] ECR I-02433
Case C-260/89 Elliniki Radiophonia Tiléorassi AE and Panellinia Omospondia Syllogon
Prossopikou v Dimotiki Etairia Pliroforissis and Sotirios Kouvelas and Nicolaos Avdellas
and others [1991] ECR I-02925
Case C-300/89 Commission of the European Communities v Council of the European
Communities (Titanium Dioxide) [1991] ECR I-02867
Joined cases C-6/90 and C-9/90 Andrea Francovich and Danila Bonifaci and others v Italian
Republic [1991] ECR I-05357
Case T-24/90 Automec Srl v Commission of the European Communities [1992] ECR II-20223
Joined cases C-87/90, C-88/90 and C-89/90 A. Verholen and others v Sociale Verzekeringsbank
Amsterdam [1991] ECR I-03757
Case C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen
Grogan and others [1991] ECR I-04685
Case C-208/90 Theresa Emmott v Minister for Social Welfare and Attorney General [1991]
ECR I-04269
Case C-97/91 Oleificio Borelli SpA v Commission of the European Communities [1992] ECR I-
06313
Case C-271/91 M. Helen Marshall v Southampton and South-West Hampshire Area Health
Authority [1993] ECR I-04367
Zampia G Vernadaki, UCL Laws
273
Case C-338/91 H. Steenhorst-Neerings v Bestuur van de Bedrijfsvereniging voor Detailhandel,
Ambachten en Huisvrouwen [1993] ECR I-05475
Case C-20/92 Anthony Hubbard (Testamentvollstrecker) v Peter Hamburger [1993] ECR I-
03777
Case C-24/92 Pierre Corbiau v Administration des contributions [1993] ECR I-01277
Case C-128/92 H. J. Banks & Co. Ltd v British Coal Corporation [1994] ECR I-01209
Case C-135/92 Fiskano AB v Commission of the European Communities [1994] ECR I-02885
Case C-393/92 Municipality of Almelo and others v NV Energiebedrijf Ijsselmij [1994] ECR I-
01477
Case C-410/92 Elsie Rita Johnson v Chief Adjudication Officer [1994] ECR I-05483
Joined cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v Bundesrepublik Deutschland and
The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others
[1996] ECR I-01029
Case C-280/93 Federal Republic of Germany v Council of the European Union [1994] ECR I-
04973
Case C-312/93 Peterbroeck, Van Campenhout & Cie SCS v Belgian State [1995] ECR I-04599
Case C-392/93 The Queen v H. M. Treasury, ex parte British Telecommunications plc [1996]
ECR I-01631
Case C-394/93 Gabriel Alonso-Pérez v Bundesanstalt für Arbeit [1995] ECR I-04101
Case C-400/93 Specialarbejderforbundet i Danmark v Dansk Industri, formerly Industriens
Arbejdsgivere, acting for Royal Copenhagen A/S [1995] ECR I-01275
Case C-426/93 Federal Republic of Germany v Council of the European Union [1995] ECR I-
03723
Joined cases C-430/93 and C-431/93 Jeroen van Schijndel and Johannes Nicolaas Cornelis van
Veen v Stichting Pensioenfonds voor Fysiotherapeuten [1995] ECR I-04705
Case C-441/93 Panagis Pafitis and others v Trapeza Kentrikis Ellados A.E. and others [1996]
ECR I-01347
Case C-446/93 SEIM - Sociedade de Exportação e Importação de Materiais Ldª v Subdirector-
Geral das Alfândegas [1996] ECR I-00073
Case C-465/93 Atlanta Fruchthandelsgesellschaft mbH and others v Bundesamt für Ernährung
und Forstwirtschaft [1995] ECR I-03761
Case C-5/94 The Queen v Ministry of Agriculture, Fisheries and Food, ex parte: Hedley Lomas
(Ireland) Ltd [1996] ECR I-02553
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
274
Case C-84/94 United Kingdom of Great Britain and Northern Ireland v Council of the
European Union [1996] ECR I-0575
Case C-90/94 Haahr Petroleum Ltd v Åbenrå Havn and Others [1997] ECR I-04085
Case C-129/94 Criminal proceedings against Rafael Ruiz Bernáldez [1996] ECR I-01829
Joined cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Erich Dillenkofer and
Others v Bundesrepublik Deutschland [1996] ECR I-04845
Case C-194/94 CIA Security International SA v Signalson SA and Securitel SPRL [1996] ECR I-
02201
Case C-233/94 Federal Republic of Germany v European Parliament and Council of the
European Union [1997] ECR I-02405
Joined cases C-283/94, C-291/94 and C-292/94 Denkavit International BV, VITIC Amsterdam
BV and Voormeer BV v Bundesamt für Finanzen [1996] ECR I-05063
Case C-66/95 The Queen v Secretary of State for Social Security, ex parte Eunice Sutton [1997]
ECR I-02163
Case C-68/95 T. Port GmbH & Co. KG v Bundesanstalt für Landwirtschaft und Ernährung
[1996] ECR I-06065
Case C-70/95 Sodemare SA, Anni Azzurri Holding SpA and Anni Azzurri Rezzato Srl v Regione
Lombardia [1997] ECR I-03395
Case C-72/95 Aannemersbedrijf P.K. Kraaijeveld BV e.a. v Gedeputeerde Staten van Zuid-
Holland [1996] ECR I-05403
Case C-185/95 P. Baustahlgewebe GmbH v Commission of the European Communities [1998]
ECR I-08417
Joined cases Joined cases C-192/95 to C-218/95 Société Comateb and Others v Directeur
général des douanes et droits indirects [1997] ECR I-00165
Case C-242/95 GT-Link A/S v De Danske Statsbaner (DSB) [1997] ECR I-04449
Joined cases C-248/95 and C-249/95 SAM Schiffahrt GmbH and Heinz Stapf v Bundesrepublik
Deutschland [1997] ECR I-04475
Case C-261/95 Rosalba Palmisani v Istituto nazionale della previdenza sociale (INPS) [1997]
ECR I-04025
Case C-368/95 Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v Heinrich Bauer
Verlag [1997] ECR I-03689
Case C-54/96 Dorsch Consult Ingenieurgesellschaft mbH v Bundesbaugesellschaft Berlin mbH
[1997] ECR I-04961
Zampia G Vernadaki, UCL Laws
275
Case C-246/96 Mary Teresa Magorrian and Irene Patricia Cunningham v Eastern Health and
Social Services Board and Department of Health and Social Services [1997] ECR I-
07153
Case C-326/96 B.S. Levez v T.H. Jennings (Harlow Pools) Ltd [1998] ECR I-07835
Case C-343/96 Dilexport Srl v Amministrazione delle Finanze dello Stato [1999] ECR I-00579
Joined cases C-9/97 and C-118/97 Raija-Liisa Jokela and Laura Pitkärant [1998] ECR I-06267
Case C-103/97 Josef Köllensperger GmbH & Co. KG and Atzwanger AG v Gemeindeverband
Bezirkskrankenhaus Schwaz [1999] ECR I-00551
Case C-126/97 Eco Swiss China Time Ltd v Benetton International NV [1999] ECR I-03055
Case C-224/97 Erich Ciola v Land Vorarlberg [1999] ECR I-02517
Case C-387/97 Commission of the European Communities v Hellenic Republic [2000] ECR I-
05047
Case C-7/98 Dieter Krombach v André Bamberski [2000] ECR I-1935
Case C-78/98 Shirley Preston and Othes v Wolverhampton Healthcare NHS Trust and Others
and Dorothy Fletcher and Others v Midland Bank plc [2000] ECR I-03201
Joined cases C-240/98 to C-244/98 Océano Grupo Editorial SA v Roció Murciano Quintero (C-
240/98) and Salvat Editores SA v José M. Sánchez Alcón Prades (C-241/98), José Luis
Copano Badillo (C-242/98), Mohammed Berroane (C-243/98) and Emilio Viñas Feliú
(C-244/98) [2000] ECR I-04941
Case C-376/98 Federal Republic of Germany v European Parliament and Council of the
European Union [2000] ECR I-08419
Case C-377/98 Kingdom of the Netherlands v European Parliament and Council of the
European Union [2001] ECR I-07079
Case C-407/98 Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist [2000] ECR I-
05539
Case C-194/99 P Thyssen Stahl AG v Commission of the European Communities [2003] ECR I-
10821
Case C-199/99 P. Corus UK Ltd v Commission of the European Communities [2003] ECR I-
11177
Joined cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and
C-254/99 P. Limburgse Vinyl Maatschappij NV (LVM) (C-238/99 P) and Others v
Commission of the European Communities [2002] ECR I-08375
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
276
Case C-315/99 P Ismeri Europa Srl v Court of Auditors of the European Communities [2001]
ECR I-05281
Case C-453/99 Courage Ltd v Bernard Crehan and Bernard Crehan v Courage Ltd and Others
[2001] ECR I-06297
Case C-516/99 Walter Schmid [2002] ECR I-04573
Joined cases C-27/00 and C-122/00 The Queen v Secretary of State for the Environment,
Transport and the Regions, ex parte Omega Air Ltd (C-27/00) and Omega Air Ltd , Aero
Engines Ireland Ltd and Omega Aviation Services Ltd v Irish Aviation Authority (C-
122/00) [2002] ECR I-02569
Case C-50/00 P Unión de Pequeños Agricultores v Council of the European Union [2002] ECR
I-06677
Case C-129/00 Commission of the European Communities v Italian Republic [2003] ECR I-
14637
Case T-180/00 Astipesca SL v Commission of the European Communities [2002] ECR II-03985
Case C-253/00 Antonio Muñoz y Cia SA and Superior Fruiticola SA v Frumar Ltd and
Redbridge Produce Marketing Ltd [2002] ECR I-07289
Case C-255/00 Grundig Italiana SpA v Ministero delle Finanze [2002] ECR I-08003
Case C-338/00 P Volkswagen AG v Commission of the European Communities [2003] ECR I-
09189
Joined cases T-377/00, T-379/00, T-380/00, T-260/01 and T-272/01 Philip Morris
International, Inc and Others v Commission of the European Communities [2003] ECR
II-00001
Case C-453/00 Kühne & Heitz NV v Produktschap voor Pluimvee en Eieren [2004] ECR I-
00837
Case C-473/00 Cofidis SA v Jean-Louis Fredout [2002] ECR I-10875
Case C-63/01 Samuel Sidney Evans v The Secretary of State for the Environment, Transport and
the Regions and The Motor Insurers' Bureau [2003] ECR I-14447
Case C-78/01 Bundesverband Güterkraftverkehr und Logistik eV (BGL) v Bundesrepublik
Deutschland [2003] ECR I-09543
Case C-147/01 Weber's Wine World Handels-GmbH and Others v
Abgabenberufungskommission Wien [2003] ECR I-11365
Case C-211/01 Commission of the European Communities v Council of the European Union
[2003] ECR I-08913
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Case C-224/01 Gerhard Köbler v Republik Österreich [2003] ECR I-10239
Case C-276/01 Joachim Steffensen [2003] ECR I-03735
Case C-278/01 Commission of the European Communities v Kingdom of Spain [2003] ECR I-
14141
Case C-71/02 Herbert Karner Industrie-Auktionen GmbH v Troostwijk GmbH [2004] ECR I-
03025
Case C-263/02 P Commission of the European Communities v Jégo-Quéré & Cie SA [2004]
ECR I-03425
Case C-287/02 Kingdom of Spain v Commission of the European Communities [2005] ECR I-
05093
Case C-86/03 Hellenic Republic v Commission of the European Communities [2005]
ECR I-10979
Joined cases C-96/03 and C-97/03 A. Tempelman (C-96/03) and Mr and Mrs T.H.J.M. van
Schaijk (C-97/03) v Directeur van de Rijksdienst voor de keuring van Vee en Vlees [2005]
ECR I-01895
Case C-110/03 Kingdom of Belgium v Commission of the European Communities [2005] ECR I-
02801
Case C-173/03 Traghetti del Mediterraneo SpA v Repubblica italiana [2006] ECR I-05177
Case C-204/03 Commission of the European Communities v Kingdom of Spain [2005] ECR I-
8389
Case T-351/03 Schneider Electric SA v Commission of the European Communities [2007] ECR
II-02237
Joined cases C-154/04 and C-155/04 The Queen, on the application of Alliance for Natural
Health and Nutri-Link Ltd v Secretary of State for Health (C-154/04) and The Queen, on
the application of National Association of Health Stores and Health Food Manufacturers
Ltd v Secretary of State for Health and National Assembly for Wales (C-155/04) [2005]
ECR I-06451
Case C-186/04 Pierre Housieaux v Délégués du conseil de la Région de Bruxelles-Capitale
[2005] ECR I-03299
Case C-403/04 P Sumitomo Metal Industries Ltd (C-403/04 P) and Nippon Steel Corp. (C-
405/04 P) v Commission of the European Communities [2007] ECR I-00729
Case C-504/04 Agrarproduktion Staebelow GmbH v Landrat des Landkreises Bad Doberan
[2006] ECR I-00679
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278
Case C-506/04 Graham J. Wilson v Ordre des avocats du barreau de Luxembourg [2006] ECR
I-08613
Case C-168/05 Elisa María Mostaza Claro v Centro Móvil Milenium SL [2006] ECR I-10421
Case C-432/05 Unibet (London) Ltd and Unibet (International) Ltd v Justitiekanslern [2007]
ECR I-02271
Joined cases C-439/05 P and C-454/05 P Land Oberösterreich and Republic of Austria v
Commission of the European Communities [2007] ECR I-07141
Case C-55/06 Arcor AG & Co. KG v Bundesrepublik Deutschland [2008] ECR I-02931
Case C-268/06 Impact v Minister for Agriculture and Food and Others [2008] ECR I-02483
Case C-409/06 Winner Wetten GmbH v Bürgermeisterin der Stadt Bergheim [2010] ECR I-
08015
Case C-450/06 Varec SA v Belgian State [2008] ECR I-00581
Case T-49/07 Sofiane Fahas v Council of the European Union [2010] ECR II-05555
Case C-349/07 Sopropé - Organizações de Calçado Lda v Fazenda Pública [2008] ECR I-
10369
Case C-394/07 Marco Gambazzi v DaimlerChrysler Canada Inc. and CIBC Mellon Trust
Company [2009] ECR I-2563
Case C-12/08 Mono Car Styling SA, in liquidation v Dervis Odemis and Others [2009] ECR I-
06653
Case C-40/08 Asturcom Telecomunicaciones SL v Cristina Rodríguez Nogueira [2009] ECR I-
09579
Case C-58/08 The Queen, on the application of Vodafone Ltd and Others v Secretary of State
for Business, Enterprise and Regulatory Reform [2010] ECR I-04999
Case C-63/08 Virginie Pontin v T-Comalux SA [2009] ECR I-10467
Case C-75/08 The Queen, on the application of Christopher Mellor v Secretary of State for
Communities and Local Government [2009] ECR I-03799
Case C-118/08 Transportes Urbanos y Servicios Generales SAL v Administración del Estado
[2010] ECR I-00635
Case C-243/08 Pannon GSM Zrt. v Erzsébet Sustikné Győrfi [2009] ECR I-04713
Joined cases C-317/08, C-318/08, C-319/08 and C-320/08 Rosalba Alassini v Telecom Italia
SpA (C-317/08), Filomena Califano v Wind SpA (C-318/08), Lucia Anna Giorgia Iacono
v Telecom Italia SpA (C-319/08) and Multiservice Srl v Telecom Italia SpA (C-320/08)
[2010] ECR I-02213
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Case C-279/09 DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v
Bundesrepublik Deutschland [2010] ECR I-13849
Case C-283/09 Artur Weryński v Mediatel 4B spółka z o.o. [2011] ECR I-00601
Case C-336/09 P Republic of Poland v European Commission [2012] OJ C 258/2
Joined cases C-372/09 and C-373/09 Josep Peñarroja Fa [2011] I-01785
Case C-396/09 Interedil Srl, in liquidation v Fallimento Interedil Srl and Intesa Gestione
Crediti SpA [2011] OJ C 362/3
Case C-69/10 Brahim Samba Diouf v Ministre du Travail, de l’Emploi et de l’Immigration
[2011] OJ C 298/6
Joined cases T-439/10 and T-440/10 Fulmen (T-439/10) and Fereydoun Mahmoudian (T-
440/10) v Council of the European Union [2012] OJ C 133/24
Case C-500/10 Ufficio IVA di Piacenza v Belvedere Costruzioni Srl [2012] OJ C 151/6
CJEU Opinions
Opinion 1/91 Opinion delivered pursuant to the second subparagraph of Article 228 (1) of the
Treaty - Draft agreement between the Community, on the one hand, and the countries of
the European Free Trade Association, on the other, relating to the creation of the
European Economic Area [1991] ECR I-06079
Opinion 2/94 Accession by the Community to the European Convention for the Protection of
Human Rights and Fundamental Freedoms [1996] ECR I-01759
Opinions of Advocate Generals
Opinion of Mr Advocate General Roemer delivered on 12 December 1962, Case 26-62 NV
Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland
Revenue Administration [1963] ECR 00001
Opinion of Mr Advocate General Mancini delivered on 27 September 1983, Case 199/82
Amministrazione delle Finanze dello Stato v SpA San Giorgio [1983] ECR 03595
Opinion of Mr Advocate General Tesauro delivered on 17 May 1990, Case C-213/89 The
Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others [1990]
ECR I-02433
Opinion of Mr Advocate General Van Gerven delivered on 27 October 1993, Case C-128/92 H.
J. Banks & Co. Ltd v British Coal Corporation [1994] ECR I-01209
Opinion of Mr Advocate General Jacobs delivered on 9 March 1995, Case C-62/93 BP
Soupergaz Anonimos Etairia Geniki Emporiki-Viomichaniki kai Antiprossopeion v Greek
State [1995] ECR I-01883
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
280
Opinion of Mr Advocate General Jacobs delivered on 15 June 1995, Joined cases C-430/93 and
C-431/93 Jeroen van Schijndel and Johannes Nicolaas Cornelis van Veen v Stichting
Pensioenfonds voor Fysiotherapeuten [1995] ECR I-04705
Opinion of Mr Advocate General Cosmas delivered on 23 January 1997, Case C-261/95
Rosalba Palmisani v Istituto nazionale della previdenza sociale (INPS) [1997] ECR I-
04025
Opinion of Mr Advocate General Jacobs delivered on 26 June 1997, Case C-188/95 Fantask A/S
e.a. v Industriministeriet (Erhvervministeriet) [1997] ECR I-06783
Opinion of Mr Advocate General Léger delivered on 3 February 1998, Case C-185/95 P.
Baustahlgewebe GmbH v Commission of the European Communities [1998] ECR I-
08417
Opinion of Mr Advocate General Léger delivered on 12 May 1998, Case C-326/96 B.S. Levez v
T.H. Jennings (Harlow Pools) Ltd [1998] ECR I-07835
Opinion of Mr Advocate General Jacobs delivered on 30 March 2000, Case C-210/98 P
Salzgitter AG, formerly Preussag Stahl AG v Commission of the European Communities
and Federal Republic of Germany [2000] ECR I-05843
Opinion of Mr Advocate General Alber delivered on 24 October 2002, Case C-63/01 Samuel
Sidney Evans v The Secretary of State for the Environment, Transport and the Regions
and The Motor Insurers' Bureau [2003] ECR I-14447
Opinion of Mr Advocate General Léger delivered on 8 April 2003, Case C-224/01 Gerhard
Köbler v Republik Österreich [2003] ECR I-10239
Opinion of Mr Advocate General Mengozzi delivered on 16 November 2006, Case C-523/04
Commission of the European Communities v Kingdom of the Netherlands [2007] ECR I-
03267
Opinion of Advocate General Sharpston delivered on 30 November 2006, Case C-432/05
Unibet (London) Ltd and Unibet (International) Ltd v Justitiekanslern [2007] ECR I-
02271
Opinion of Mr Advocate General Trstenjak delivered on 24 April 2008, Case C-265/07 Caffaro
Srl v Azienda Unità Sanitaria Locale RM/C [2008] ECR I-07085
Opinion of Mr Advocate General Poiares Maduro delivered on 1 March 2007, Joined cases C-
222/05 to C-225/05 J. van der Weerd and Others v Minister van Landbouw, Natuur en
Voedselkwaliteit [2007] ECR I-04233
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Opinion of Mr Advocate General Poiares Maduro delivered on 1 October 2009, Case C-58/08
The Queen, on the application of Vodafone Ltd and Others v Secretary of State for
Business, Enterprise and Regulatory Reform [2010] ECR I-04999
Opinion of Mr Advocate General Cruz Villalón delivered on 1 March 2011, Case C-69/10
Brahim Samba Diouf v Ministre du Travail, de l’Emploi et de l’Immigration [2011] OJ C
298/6
Opinion of Advocate General Trstenjak delivered on 22 September 2011, Case C-411/10 N. S. v
Secretary of State for the Home Department [2011] OJ C 49/8
Opinion of Advocate General Kokott delivered on 19 April 2012, Case C-416/10 Jozef Križan
and Others v Slovenská inšpekcia životného prostredia [2013] OJ C63/2
European Court of Human Rights (ECtHR)
Neumeister v. Austria App no 1936/63 (ECtH, 27 June 1968)
Delcourt v. Belgium App no 2689/65 (ECtHR, 17 January 1970)
Golder v. United Kingdom App no 4451/70 (ECtHR, 21 February 1975)
Klass and Others v. Germany App no 5029/71 (ECtHR, 6 September 1978)
Silver and Others v. the United Kingdom App no 5947/72; 6205/73; 7052/75; 7061/75; 7107/75;
7113/75; 7136/75 (ECtHR, 25 March 1983)
König v. Germany App no 6232/73 (ECtHR, 28 June 1978)
Airey v. Ireland App no 6289/73 (ECtHR, 9 October 1979)
Artico v. Italy App no 6694/74 (ECtHR, 13 May 1980)
Buchholz v. Germany App no 7759/77 (ECtHR, 6 May 1981)
Campbell and Fell v. the United Kingdom App no 7819/77; 7878/77 (ECtHR, 28 June 1984)
Pretto and others v. Italy App no 7984/77 (ECtHR, 8 December 1983)
Eckle v. the Federal Republic of Germany App no 8130/78 (ECtHR, 15 July1982)
Ashingdane v. United Kingdom App no 8225/78 (ECtHR, 28 May 1985)
Axen v. Germany App no 8273/78 (ECtHR, 8 December 1983)
Feldbrugge v. The Netherlands App no 8562/79 (ECtHR, 29 May 1986)
Piersack v. Belgium App no 8692/79 (ECtHR, 1 October 1982)
Zimmerman and Steiner v. Switzerland App no 8737/79 (ECtHR, 13 July 1983)
Sramek v. Austria App no 8790/79 (ECtHR, 22 October 1984)
Benthem v. Netherlands App no 8848/80 (ECtHR, 23 October 1985)
H v. Belgium App no 8950/80 (ECtHR, 30 November 1987)
X. and Y. v. Netherlands App no 8978/80 (ECtHR, 26 March 1985)
EU Civil Procedure Law and the Right of Access to Justice after the Lisbon Treaty: Perspectives for a Coherent Approach
282
Guincho v. Portugal App no 8990/80 (ECtHR, 10 July 1984)
Deumeland v. Germany App no 9384/81 (ECtHR, 29 May 1986)
H. v. United Kingdom (Article 50) App no 9580/81 (ECtHR, 8 July 1987)
H v. France App no 10073/82 (ECtHR, 24 October 1989)
Hauschildt v. Denmark App no 10486/83 (ECtHR, 24 May 1989)
Ekbatani v. Sweden App no 10563/83 (ECtHR, 26 May 1988).
Schenk v. Switzerland App no 10862/84 (ECtHR, 12 July 1988)
Brandstetter v. Austria App no 11170/84; 12876/87; 13468/87 (ECtHR, 28 August 1991)
Langborger v. Sweden App no 11179/84 (ECtHR, 22 June 1989)
Unión Alimentaria Sanders SA v. Spain App no 11681/85 (ECtHR, 7 July 1989)
Obermeier v. Austria App no 11761/85 (ECtHR, 28 June 1990)
Manzoni v. Italy App no 11804/85 (ECtHR, 19 February 1991)
Håkansson and Sturesson v. Sweden App no 11855/85 (ECtHR, 21 February 1990)
Vernillo v. France App no 11889/85 (ECtHR, 20 February 1991)
Borgers v. Belgium App no 12005/86 (ECtHR, 30 October 1991)
Kremzow v. Austria App no 12350/86 (ECtHR, 21 September 1993)
Katte Klitsche de la Grange v. Italy App no 12539/86 (ECtHR, 27 October 1994)
Angelucci v. Italy App no 12666/87 (ECtHR, 19 February 1991)
Boddaert v. Belgium App no 12919/87 (ECtHR, 12 October 1992)
Ruiz-Mateos v. Spain App no 12952/87 (ECtHR, 23 June 1993)
Andreucci v. Italy App no 12955/87 (ECtHR, 27 February 1992)
Salesi v. Italy App no 13023/87 (ECtHR, 26 February 1993)
Triggiani v. Italy App no 13509/88 (ECtHR, 19 February 1991)
Dombo Beheer B.V. v. The Netherlands App no 14448/88 (ECtHR, 27 October 1993)
Schuler-Zgraggen v. Switzerland App no 14518/89 (ECtHR, 24 June 1993)
Stallinger and Kuso v. Austria App no 14696/89; 14697/89 (ECtHR, 23 April 1997)
Silva Pontes v. Portugal App no 14940/89 (ECtHR, 23 March 1994)
Beaumartin v. France App no 15287/89 (ECtHR, 24 November 1994)
McMichael v. the United Kingdom App no 16424/90 (ECtHR, 24 February 1995)
Fischer v. Austria App no 16922/90 (ECtHR, 26 April 1995)
Thomann v. Switzerland App no 17602/91 (ECtHR, 10 June 1996)
Diennet v. France App no 18160/91 (ECtHR, 26 September 1995)
Fredin v. Sweden (no 2) App no 18928/91 (ECtHR, 23 February 1994)
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Hokkanen v. Finland App no 19823/92 (ECtHR, 23 September 1994)
Ferrantelli and Santangelo v. Italy App no 19874/92 (ECtHR, 7 August 1996)
Szucs v. Austria App no 20602/92 (ECtHR, 24 November 1997)
J.J. v. The Netherlands App no 21351/93 (ECtHR, 27 March 1998)
Werner v. Austria App no 21835/93 (ECtHR, 24 November 1997)
Chahal v. the United Kingdom App no 22414/93 (ECtHR, 15 November 1996)
Ceteroni v. Italy App no 22461/93, 22465/93 (ECtHR, 15 November 1996)
Aerts v. Belgium App no 25357/94 (ECtHR, 30 July 1998)
Brumărescu v. Romania App no 28342/95 (ECtHR, 28 October 1999)
Iatridis v. Greece App no 31107/96 (ECtHR, 25 March 1999)
Glaser v. the United Kingdom App no 32346/96 (ECtHR, 19 September 2000)
E and Other v. the United Kingdom App no 33218/96 (ECtHR, 26 November 2002)
Smith and Grady v. the United Kingdom App no 33985/96; 33986/96 (ECtHR, 27 September
1999)
Sander v. the United Kingdom App no 34129/96 (ECtHR, 9 May 2000)
Di mauro v. Italy App no 34256/96 (ECtHR, 28 July 1999)
Dulaurans v. France App no 34553/97 (ECtHR, 21 March 2000)
Bottazzi v. Italy App no 34884/97 (ECtHR, 28 July 1999)
Krčmář and Others v. the Czech Republic App no 35376/97 (ECtHR, 3 March 2000)
B and P v. the United Kingdom App no 36337/97; 35974/97 (ECtHR, 24 April 2001)
Sigurdsson v. Iceland App no 39731/98 (ECtHR, 10 April 2003)
Jasiūnienė v. Lithuania App no 41510/98 (ECtHR, 6 June 2003)
Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Şirketi V. Ireland App no 45036/98
(ECtHR, 30 June 2005),
Kyrtatos v. Greece App no 41666/98 (ECtHR, 22 May 2003)
McVicar v. the United Kingdom App no 46311/99 (ECtHR, 7 May 2002)
Chevrol v. France App no 49636/99 (ECtHR, 13 February 2003)
Conka v. Belgium App no 51564/99 (ECtHR, 5 February 2002)
Ryabykh v. Russia App no 52854/99 (ECtHR, 24 July 2003)
Lavents v. Latvia App no 58442/00 (ECtHR, 28 November 2002)
Burdov v. Russia App no 59498/00 (ECtHR, 7 May 2002)
Užkurėlienė and others and others v. Lithuania App no 62988/00 (ECtHR, 7 April 2005)
Steel and Morris v. the United Kingdom App no 68416/01 (ECtHR, 15 February 2005)
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284
Fuklev v.Ukraine App no 71186/01 (ECtHR, 7 June 2005)
Kolomiyets v. Russia App no 76835/01 (ECtHR, 22 February 2007)
Bujnita v. Moldova App no 36492/02 (ECtHR, 16 January 2007)
Svetlana Orlova v. Russia App no 4487/04 (ECtHR, 30 October 2009)
Shtukaturov v. Russia App no 44009/05 (ECtHR, 27 June 2008)
Koottummel v. Austria App no 49616/06 (ECtHR, 10 March 2010)
European Commission of Human Rights
X v. Austria (1972) 42 EHRR CD 145
Zand v. Austria (1978) 15 DR 70
M v. the United Kingdom (1987) 52 DR 269
Ewing v. the United Kingdom (1989) 56 DR 71
Opinions
Dissenting opinion of Mr Lorenzen joined by Mr Rozakis, Ferrazzini v. Italy App no 44759/98
(ECtHR, 12 July 2001)
Opinions of Judges Tulkens, Maruste and Fura-Sandström, Martinie v. France App no
58675/00 (ECtHR, 12 April 2006)
Germany
Bundesverfassungsgericht decision of 18 October 1967, EEC Regulations Constitutionality
Case, BVerfGE 22, 293
Case 2 BvL 52/71 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für
Getreide und Futtermittel (Bundesverfassungsgericht) judgment of 22 May 1974 [1974] 2
CMLR 540
Italy
Case 183 Frontini v. Ministero delle Finanze, Italian Constitutional Court of 27/12/73 reported
in [1974] 2 CMLR 383-90
UK
Anton Piller KG v Manufacturing Processes Ltd. [1976] 1 Ch. 55, [1976] R.P.C. 719
Mareva Compania Naviera SA v International Bulk Carriers SA [1975] 2 Lloyd’s Rep. 509
Norwich Pharmacal Co. v Commissioners of Customs and Excise [1974] A.C. 133
Universal City Studios Inc. v Mukhtar & Sons [1976] F.S.R. 252
List of Treaties and Conventions
EU
Treaty establishing the European Economic Community – Rome Treaty [1957]
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Convention of 27 Spetember 1968 on Jurisdiction and the Enforcement of Judgments in Civil
and Commercial Matters [1972] OJ L299/32
Single European Act [1987] OJ L169/1
Treaty on European Union – Maastricht Treaty [1992] OJ C191/01
Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the
European Communities and certain related acts [1997] OJ C340/01
Treaty establishing a Constitution for Europe [2004] OJ C310/01
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the
European Community [2007] OJ C306/01
Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of
the European Union [2012] OJ C326/01
Charter of Fundamental Rights of the European Union [2012] OJ C326/02
Treaty of Accession of Croatia [2012] OJ L122/10
Council of Europe
European Convention for the Protection of Human Rights and Fundamental Freedoms
Protocol No. 14 to the Convention for the Protection of Human Rights and Fundamental
Freedoms, amending the control system of the Convention
United Nations
1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making
and Access to Justice in Environmental Matters
2006 Convention on the Rights of Persons with Disabilities
WTO
1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
List of Legislation
EU
Directives
Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of
equal treatment for men and women as regards access to employment, vocational training
and promotion, and working conditions [1976] OJ L39/40
Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the
Member States relating to turnover taxes - Common system of value added tax: uniform
basis of assessment [1977] OJ L145/1
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286
Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the
principle of equal treatment for men and women in matters of social security [1979] OJ
L6/24
Council Directive 80/987/EEC of 20 October 1980 on the approximation of the laws of the
Member States relating to the protection of employees in the event of the insolvency of
their employer [1980] OJ L283/23
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts [1993] OJ
L95/29
Council Directive 95/7/EC of 10 April 1995 amending Directive 77/388/EEC and introducing
new simplification measures with regard to value added tax - scope of certain exemptions
and practical arrangements for implementing them [1995] OJ L102/18
Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the
protection of consumers in respect of distance contracts [1997] OJ L144/19
Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on
injunctions for the protection of consumers' interests [1998] OJ L166/51
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain
legal aspects of information society services, in particular electronic commerce, in the
Internal Market (Directive on electronic commerce) [2000] OJ L178/1
Council Directive 2000/43/EC on the equal treatment of persons irrespective of racial or ethnic
origin [2000] OJ L180/22
Council Directive 2000/78/EC on a general framework for equal treatment in employment and
occupation [2000] OJ L303/16
Council Directive 2002/8/EC of 27 January 2003 to improve access to justice in cross-border
disputes by establishing minimum common rules relating to legal aid for such disputes
[2003] OJ L26/41
Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the
enforcement of intellectual property rights (IPRED) [2004] OJ L195/16
Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005
concerning unfair business-to-consumer commercial practices in the internal market and
amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC
of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the
European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (Text
with EEA relevance) [2005] OJ L149/22
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Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the
implementation of the principle of equal opportunities and equal treatment of men and
women in matters of employment and occupation (recast) [2006] OJ L204/23
Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007
amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the
effectiveness of review procedures concerning the award of public contracts [2007] OJ
L335/31
Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain
aspects of mediation in civil and commercial matters [2008] OJ L136/3
Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on
injunctions for the protection of consumers' interests [2009] OJ L110/30
Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on
combating late payment in commercial transactions [2011] OJ L48/1
Decisions
Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the
European Community, as regards matters within its competence, of the agreements
reached in the Uruguay Round multilateral negotiations (1986-1994) [1994] OJ L336/1
Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the
European Community, of the Convention on access to information, public participation in
decision-making and access to justice in environmental matters [2005] OJ L124/1
Regulations
Council regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of
judicial and extrajudicial documents in civil or commercial matters [2000] OJ L160/37
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition
and enforcement of judgments in civil and commercial matters [2001] OJ L12/1
Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of
the Member States in the taking of evidence in civil or commercial matters [2001] OJ
L174/1
Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004
creating a European Enforcement Order for uncontested claims [2004] OJ L143/15
Regulation 1896/2006 of the European Parliament and of the Council of 12 December 2006
creating a European order for payment procedure [2006] OJ L399/1
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Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007
establishing a European Small Claims Procedure (ESCP) [2007] OJ L199/1
Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November
2007 on the service in the Member States of judicial and extrajudicial documents in civil
or commercial matters (service of documents), and repealing Council Regulation (EC) No
1348/2000 [2007] OJ L324/79
Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December
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